House of Lords
Death of a Member: Lord Wedderburn of Charlton
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Wedderburn of Charlton, on 9 March. On behalf of the House, I extend our deep condolences to the noble Lord’s family and friends.
EU: Economic and Financial Issues
(12 years, 9 months ago)
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Lord Dykes
To ask Her Majesty’s Government when they will next hold high-level talks with their European Union partners on economic and financial issues.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the Government hold high-level talks with all our European Union partners on economic and financial issues at the regular European Union Economic and Financial Affairs Councils. The next Economic and Financial Affairs Council—ECOFIN—is taking place tomorrow, Tuesday 13 March.
Lord Dykes
I thank my noble friend for that Answer and wish him well for that meeting. Can he explain carefully to the House why, since we had achieved—with some skill—all our objectives on the innovation, investment and growth programme of the EU at the recent meeting of all the member states, we did not therefore show solidarity by signing the fiscal compact treaty as well, alongside every other member apart from the Czech Republic?
Lord Sassoon
My Lords, the fiscal compact intergovernmental treaty was discussed at the European Council on 8 and 9 December. As has been discussed on a significant number of occasions, the UK did not get the safeguards it was looking for and is not a party to that treaty, which is why we did not sign it in the fringes of the European Council on 1 and 2 March.
Lord Barnett
My Lords, will the noble Lord accept my congratulations to the Government on following the previous Government’s agreement not to join the euro? Nevertheless, would it not be as well to admit that because of that, unfortunately, the whole question of the survival of the euro is discussed mainly among eurozone Finance Ministers? Why will he not admit it?
Lord Sassoon
Well, I have not been asked the question in those terms before. It is for the eurozone members to bear the brunt of sorting out the eurozone. That is exactly what they are getting on with doing, which is why we welcome the fiscal compact intergovernmental treaty as a necessary step towards the remorseless logic that with currency union comes much closer fiscal union. We keep close to it. Meanwhile, we are working with many like-minded states on an ambitious pro-growth agenda, which is what Europe also desperately needs.
Lord Newby
My Lords, the noble Lord mentioned ECOFIN, but tonight there is a meeting of the 17 Finance Ministers of the eurozone. Will the UK be represented at that meeting, which is discussing the size of the firewall, and if so, what line will it be taking?
Lord Sassoon
No, my Lords; the UK will not be represented at the euro group meeting later today because we are not in the euro group. On the other hand, there will be a debrief of Ministers before the formal ECOFIN starts at breakfast time tomorrow.
Lord Tomlinson
The Minister referred in reply to the original Question to the failure to satisfy all our negotiating points. Is he yet in a position to share with the House what specifically were the negotiating objectives and which ones in particular are not satisfied by the financial compact?
Lord Sassoon
My Lords, I really cannot add anything to the previous discussions we have had on a number of occasions. It is nice to have the question asked by a different noble Lord this time, but I cannot add anything to what has been said before.
Lord Lawson of Blaby
My Lords, reverting to the original Question, would it not be extraordinarily hypocritical and rather puzzling to the British people if we were to sign a fiscal compact to which we had not the slightest intention of being party?
Lord Eatwell
My Lords, a Written Ministerial Statement was issued earlier today about the ECOFIN meeting in which it was argued with respect to the financial transaction tax that,
“the proposal will have significant negative impacts on jobs and growth”.
No evidence is provided for that statement. Perhaps the noble Lord can tell us what is the negative impact on jobs and growth of the current stamp duty on share transactions?
Lord Sassoon
I believe that the effect of UK stamp duty on jobs and growth is negligible. The European Commission conducted its own assessment of the effect of the financial transaction tax, which is what I think is relevant, and the numbers that have been produced by others indicate the range of negative impacts. We think that it makes no sense to introduce a financial transaction tax on the basis of Europe going it alone without the rest of the world being there.
Lord Hannay of Chiswick
My Lords, I am delighted that the Minister has tired of the Kabuki play in which he and I have been indulging for some weeks, and I will not continue that now—
Lord Hannay of Chiswick
That seems to be popular in an unusual quarter of the House. Can the Minister perhaps tell us how, the previous strategy having failed on 9 December, the Government will set about protecting Britain’s national interests in the area of financial regulation in the current situation in which those proposals are as dead as a dodo?
Lord Sassoon
My Lords, the strategy did not fail on 8 and 9 December. We did not sign up to a treaty which it would have been wholly wrong for the UK to sign up to on the terms that were offered. What is happening now and is very positive is that we are working with a significant number of like-minded countries to drive forward the growth agenda. My right honourable friend the Prime Minister was one of 12 Heads of Government who signed up to a letter very much led by us. We have regular meetings with 16 like-minded countries to define and drive forward the pro-growth agenda.
Lord Peston
My Lords, perhaps the Minister will enlighten us on one thing. Given that the Liberal Democrats are traditionally Europhiles and the Tory party is at present packed in both Houses with Europhobes, how can we get a rational approach to anything to do with the European economy at all?
Lord Sassoon
My Lords, I believe that the coalition is driving forward our agenda on Europe with great coherence. As I have explained, the UK is leading the way not just on the single market and competitiveness issues but issues including Iran, Burma and many other areas on which we are very much at the forefront and lined up with many of our European partners.
Lord Pearson of Rannoch
My Lords, when will our estranged political class understand that the euro’s problems are embedded in its construction and cannot be cured by throwing yet more money and sticking plaster at the problems of Greece and others?
Lord Sassoon
My Lords, as I have already said, there is a remorseless logic that has to take monetary union towards closer fiscal co-ordination, if not union. That is what the latest intergovernmental agreement is one step towards.
Baroness Farrington of Ribbleton
My Lords, why did the Minister not answer at all my noble friend Lord Tomlinson’s question?
Police and Crime Panels
(12 years, 9 months ago)
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Baroness Henig
To ask Her Majesty’s Government how much money they will make available to each police and crime panel to cover start-up and first-year running costs.
The Minister of State, Home Office (Lord Henley)
My Lords, we are committed to funding police and crime panels to do the job set out for them in the Police Reform and Social Responsibility Act. We will be providing annual funding of £53,300 per panel as well as an additional £920 per panel member per annum for expenses.
Baroness Henig
I thank the Minister very much for his response. One of the few things we all agreed on when the police and social responsibility Bill was before the House was the need for these panels to be strong and to operate as effectively as possible under the new governance arrangements for the policing landscape. Does the Minister not agree that these panels will want to meet regularly, probably at least once every other month; that they will have extensive legal and financial needs; that they will need good financial and legal advice; that they will certainly have extensive training requirements in the first year to enable them to operate effectively and cohesively; and that, therefore, the sums he mentioned are totally inadequate to get these panels operating as we would like in the first year?
Lord Henley
My Lords, I do not agree with the noble Baroness at all. As the Bill went through, we made the function of the panels quite clear: it should be that of a light-touch approach. We then announced how much money would be available for them, which was £38,300 per year each. We have reviewed that figure in the light of various amendments made to the Bill, particularly some that originated this House. The figure, as I have just announced, has been increased to £53,300. We think that that is enough for the panels to do their job. The noble Baroness ought to remember that these panels are not replacing police authorities; their job is to review the actions of police and crime commissioners.
Lord Imbert
In the light of those who have said that they will now put themselves forward as police and crime commissioners, are the Minister and the Government content that they will not bring party politics to bear on policing operational decisions?
Lord Henley
My Lords, I am sure that politics will not come into this, but there will be some people who will stand under party colours. However, that does not mean they will necessarily bring politics into this matter. The noble Lord is going slightly wide of the Question, which is about the panels. The important point is to differentiate the job of the police and crime panels from that of the police and crime commissioner.
Baroness Hamwee
My Lords, even with a light touch, the panels will have to get to grips with a lot of paperwork and information, and undertake a lot of discussion in order to carry out their job of scrutiny properly. If the amount that is to be provided is insufficient, will members be expected to look to their own stretched local authorities for professional and technical back-up?
Lord Henley
My Lords, as I said in answer to the first supplementary question, we have increased by some 40 per cent the amount available to the panels in the light of discussions and thoughts we have had following the passage of the Bill. We believe that it will be sufficient. If individual local authorities wish to spend more, it will be for those authorities to make that decision themselves.
Lord Hunt of Kings Heath
My Lords, the noble Lord will be aware that the police and crime panels are the only check and balance on the potential politicisation of our police forces through elected police commissioners. This is not wide of the Question. Will he respond to reports that Mr Kit Malthouse sought to interfere in the Metropolitan Police’s actions in investigating phone hacking? That is but one example of the risk to this new system, in which the police and crime panels are the only defence but the Government are not going to fund them properly.
Lord Henley
My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the noble Lord, but if necessary—if I think it appropriate—I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.
Lord Harris of Haringey
My Lords, the experience in London is that so far the only information to have emerged from the Mayor’s Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?
Lord Henley
My Lords, I think that the noble Lord misunderstands—dare I say it?—how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.
Energy: Voltage Optimisation
Baroness Worthington
To ask Her Majesty’s Government what measures they are taking to promote lower electricity bills through the uptake of voltage optimisation, as installed in 10 Downing Street.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, energy efficiency is the cheapest way of cutting emissions and cutting bills for customers. My department launched the Energy Efficiency Deployment Office, EEDO, earlier this year to drive energy efficiency across the UK economy. EEDO will build on our existing policies, which are already encouraging the uptake of energy efficiency measures such as voltage optimisation.
Baroness Worthington
My Lords, I thank the Minister for his response. However, is he aware that voltage optimisation is not receiving all the support that it is due because of its exclusion from the energy efficiency rating system of buildings, known as SAP? This effectively excludes it from many policies that support energy efficiency and is an example of how we adopt an extraordinarily bureaucratic approach to energy efficiency, which is hampering innovation in this area. I hope that he will pledge to do all he can to remedy the situation so that voltage optimisation receives the support that it deserves.
Lord Marland
It may be of assistance to noble Lords, although science is not my strong suit, if I explain what voltage optimisation is.
Lord Marland
I am glad that that finds favour with your Lordships. As on a previous occasion, I am grateful to Wikipedia for supplying this valuable information. It states:
“Voltage optimisation is an electrical energy saving technique which is installed in series with the mains electricity supply to give an optimum supply voltage for the site's equipment”—
in other words, as has been done in No. 10, to which the noble Baroness rightly pointed, and in our department, where we have put in this optimisation technique for reducing our own electricity demand. Therefore, it is very worthy of consideration. The problem with it is that it does not have a universal remit and is not necessarily applicable for domestic use. However, we would certainly encourage all commercial property to use it.
Lord Redesdale
My Lords, will the Minister also encourage the development and use of direct-current ring mains in office buildings? This would mean that transformers could be done away with and inverters placed on the tops of buildings to be air-cooled, which would dramatically reduce the amount of energy. The problem with all new technologies is making sure that they meet the energy ratings. I hope that EEDO will look at this, because the department has an obligation under the Climate Change Act 2008 to bring down the amount of emissions coming from the built environment; last year, they went up.
Lord Marland
This is already turning into a very technical Question. My noble friend asks a very relevant question: how can we aggregate electricity usage and reduce it by a central technique? That is what the eco-design directive from the EU is encouraging. It is looking at this as an efficiency measure as we speak and I am hopeful that the outcome will be positive.
Lord West of Spithead
My Lords, some 255 years ago today, we shot an admiral to encourage the others. Does the Minister believe that we could perhaps come up with some more exciting incentives to make people take energy efficiency more seriously?
Lord Marland
I am tempted to shoot an admiral every now and then, although not of course the noble Lord, who has distinguished service. This is all part of the Government’s policy. I shall not rehearse all our marvellous policies at the moment—I am not saying that shooting the admiral is part of the Government’s policy—but clearly the Green Deal is part of them. We reduce demand on electricity and energy by not using it, and we have to find ways of not using it and educate people so to do. That is the only way out of these spiralling upward prices.
Lord Tanlaw
My Lords, is not the simplest way to save electricity to incorporate daylight saving into the Government’s policies?
Lord Broers
I congratulate the Minister on his reply, which is accurate—Wikipedia generally is. Admirals might be electrocuted as well as shot if they do not understand some of these problems clearly. This is a very complex subject with many factors, including the cost of retrofitting a lot of equipment. I looked at some of the data over the weekend and it struck me that the experiment that is being carried out in No. 10 might be quite useful. Can the Minister tell me what efficiency gain No. 10 got and how much it cost?
Lord Marland
This is the first question I have been asked. The overall reduction in energy consumption and carbon reduction in No. 10 was 10 per cent. That was in line with government demand. I can tell the noble Lord that we achieved 13.8 per cent over government, but I am afraid I cannot answer his question about specific costs. I shall be happy to write to him on that subject.
Baroness McIntosh of Hudnall
My Lords, the Minister said that he was no scientist and I have to say that I share that with him; I am certainly no scientist. However, I fail to understand his answer to the noble Baroness, Lady Worthington. Is or is not the voltage optimisation scheme that she is recommending part of the energy reduction that the Government are trying to promote?
Lord Marland
The Government are not here to take on all sorts of design that come in, although we are obviously keen to promote any reduction in electricity demand or supply, particularly in demand—and voltage optimisation is one such thing. It is already in existence. We have led by example, as I have indicated, in our department and No. 10. We encourage all people to look at it on a commercial basis because it saves on electricity demand. I hope that that answers the noble Baroness’s question. I repeat for her benefit that I am not entirely clear whether it is of benefit in domestic situations. I have asked my department to organise a workshop on the Green Deal in the next month to study it carefully.
Lord Brooke of Sutton Mandeville
My Lords, is my noble friend aware that in 1757, after the unfortunate death of Byng, a French admiral wrote to Voltaire and said that in similar circumstances he would have done exactly the same thing as Byng. I hope that my noble friend is pleased to have French support in these matters.
Lord Marland
I am sure I echo the sentiments of the House when I say that to have French support for anything is rather unusual but extremely valuable. I thank my noble friend very much.
Baroness Smith of Basildon
My Lords, I share with the noble Lord the fact that I am not quite scientific either. However, notwithstanding Wikipedia, all we are talking about is being as conscientious about energy efficiency coming into a building as we are about using energy in the building or losing it through poor insulation. The noble Lord has made several references to the Green Deal. Is he aware that currently voltage optimisation us not eligible under the Green Deal for commercial or domestic buildings? When he holds his workshop it would be helpful if he could look at changing the rules of the Green Deal. DECC has saved £19,000 a year on its energy bills, and many businesses would find that advantageous.
Lord Marland
I am grateful to the noble Baroness, as always, for her support on the Green Deal and for the work that she has carried out on it. As I said, the reason for the workshop is to look very carefully at the issue to see whether it can form part of the Green Deal. When we have come to our conclusions, I will be very happy to share them with her and with the noble Baroness, Lady Worthington.
Patrick Finucane
(12 years, 9 months ago)
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Lord Shutt of Greetland
My Lords, the Government believe that the independent review done by Sir Desmond de Silva QC will be the quickest and most effective way of revealing the truth and answering the Finucane family’s questions about what happened to Pat Finucane. The British and Irish Governments continue to work together on a wide range of issues of mutual interest—for example, the economy, commemorations and security matters.
Lord Dubs
My Lords, does the Minister agree that demands for a full inquiry into the murder of Pat Finucane have been going on for years? They have come from the United Nations, the European Court of Human Rights, the Dáil, the Irish Government, the US Senate and the House of Representatives. Will he confirm that on 11 October last year at a meeting in No. 10 Downing Street with the Finucane family and their lawyers, the Prime Minister confirmed that he accepted that there has been collusion in the murder of Pat Finucane? Will the Government not accept that they will soon run out of excuses and that until there is a full inquiry into this tragic murder, the world will think that the British Government have something to hide?
Lord Shutt of Greetland
My Lords, first, I commend the noble Lord, Lord Dubs, in his efforts to celebrate British-Irish relations in the St Patrick’s Day gala reception that will take place later today.
On the noble Lord’s question, yes, many people have an appetite for an inquiry, but we have to accept that there are two features about inquiries: first, the enormous cost; and, secondly, the enormous delay. Indeed, were an inquiry to have been commenced and were it to take as long as the Bloody Sunday inquiry, it would be 2023 before we might expect a result, which in itself is 34 years after the very sad death of Pat Finucane. Certainly, I can confirm what the Prime Minister said in Downing Street, but Sir Desmond de Silva has been appointed to do his independent review. He has been on the job for five months and we are to expect a report—he has eight months to go.
Lord Alderdice
My Lords, it is important for us to address very tragic and, in the past, worrying individual incidents, such as the horrible murder of Pat Finucane. However, my noble friend agree that instead of encouraging individual families to deal with individual incidents now that it is well over a decade and a half since the Troubles came to a close, we should increasingly try to find ways in which the community as a whole in Ireland, north and south, and the many thousands of individuals who have suffered bereavement and trauma—and, as is evidenced, a generation of young people growing up with trans-generational effects on them because of the experience of the previous generation—should be our focus for attention and for the limited resources that can be made available to deal with the trauma of the Troubles?
Lord Shutt of Greetland
My Lords, I agree with my noble friend that it is important to look at the many. The Historical Enquiries Team, a devolved matter dealt with by the Police Service for Northern Ireland, was set up in September 2005 to investigate some 3,259 unsolved deaths. To date the team has looked into 2,423, which is three-quarters of the deaths on which the team has either done the job or is getting on with the job at present. Clearly, that is very important work. Yes, there is more important work to be done, and work continues to be done in discussions between the Secretary of State and the devolved Assembly.
Lord Empey
My Lords, I met the Finucane family to discuss their call for an inquiry into Mr Pat Finucane’s outrageous death. The family told me that they had no intention of accepting an inquiry held under the 2005 legislation, even though other inquiries promised at the Weston Park negotiations were in part held under that legislation. Will the Minister confirm that government policy remains that there will be no more open-ended and expensive inquiries? If he cannot confirm this, I must call upon him to initiate inquiries into the tragedies at the La Mon House Hotel, the Kingsmill massacre, Omagh, and many more.
Lord Shutt of Greetland
My Lords, it is indeed the Government’s position that we should not go in for further lengthy, costly inquiries. We want to see this work continued, as I mentioned to my noble friend, with the Historical Enquiries Team and with other work that can proceed.
Baroness Smith of Basildon
But my Lords, I am not aware that in the case of Pat Finucane anybody has been asking for an open-ended, expensive inquiry along the lines of the Bloody Sunday inquiry that the Minister mentioned. Noble Lords will recall that the agreement between the British and Irish Governments at Weston Park had commitments from both Governments as part of a package of measures to implement the Good Friday agreement, including on inquiries and other matters such as police and security. In that agreement, a decision was taken to appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in a number of murders, including that of Pat Finucane. This was not a stand-alone inquiry but part of a package of measures agreed by the British and Irish Governments, on which the Irish Government have fulfilled their part, while the British Government have pulled back on just one of the inquiries, having had the other. Does the Minister understand how this impacts on trust between the two Governments, given that agreement made in 2001 between them? I appreciate that he may be constrained in his response, given that there is a judicial review on this decision at the moment, but it also gives the Government a breathing space in which to think again. I urge the Minister to take that space and do so.
Lord Shutt of Greetland
The response I would make to the noble Baroness is that there was an agreement in 2001, and we had got to 2010 and nothing had happened. We had a Government in office who had had nine years, and it was not possible: the noble Lord, Lord Empey, referred to what the family was willing to accept, and so forth. When the new Government came in, one of the first things that the new Secretary of State did was to meet the family and discuss things, then eventually to come to a view on whether there is another way forward. As I indicated, Sir Desmond de Silva has been at work now for five months; let him finish the task.
Health and Social Care Bill
(12 years, 9 months ago)
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Baroness Royall of Blaisdon
To ask Her Majesty's Government, in light of the decision of the information tribunal last week, whether they will publish the risk register associated with the Health and Social Care Bill before that Bill completes its Report stage in this House.
Baroness Royall of Blaisdon
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner’s initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.
Baroness Royall of Blaisdon
My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?
Earl Howe
My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.
Lord Falconer of Thoroton
My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.
Earl Howe
My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.
The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.
Lord Harris of Haringey
My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.
Earl Howe
My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.
Lord Deben
Does my noble friend agree that a number of the laws passed by the previous Government were also controversial? Can he point to occasions on which the risk register was released in those circumstances?
Earl Howe
I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.
Lord Campbell-Savours
Does the Minister intend to delay the Third Reading of the Bill?
Lord Hughes of Woodside
My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.
Lord Marks of Henley-on-Thames
What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?
Lord Grocott
Presumably, part of the need for urgency is the Government’s scheduling of the Third Reading of the Bill. I know that we are close to the end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.
Earl Howe
My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.
Lord Peston
Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?
Earl Howe
My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.
Localism Act 2011 (Consequential Amendments) Order 2012
Insolvency Act 1986 (Disqualification from Parliament) Order 2012
(12 years, 9 months ago)
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Lord Shutt of Greetland
That the draft order be referred to a Grand Committee.
Protection of Freedoms Bill
(12 years, 9 months ago)
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Baroness Anelay of St Johns
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 Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources
Amendment 1
Lord Selsdon
“32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources
Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources.”
Lord Selsdon
My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.
The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.
When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.
When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,
“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]
He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.
It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.
I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:
“Abstract nouns in -io call
Feminina one and all;
Masculine will only be
Things that you can touch or see”.
Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.
Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.
Lord Marlesford
My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.
However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.
We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.
The Earl of Erroll
My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.
Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.
I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.
The Minister of State, Home Office (Lord Henley)
My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.
My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.
My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.
My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.
We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.
Lord Selsdon
I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment), for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“4 Offence of stalking
(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable. (6) In this section—
“conduct” means (inter alia)—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if—
(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).
(9) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2.(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””
Baroness Royall of Blaisdon
My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.
This change in policy is a tribute to campaigners—in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.
A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.
The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4—putting a person in fear of violence—which was originally intended to cover cases of stalking and carries a maximum of five years’ imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.
I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.
Two women, both victims, who met the Prime Minister last Thursday—International Women’s Day—were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.
Under the amendments, the perpetrators would still be tried in the magistrates’ court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates’ court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to “fear, alarm, distress or anxiety” so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.
It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years’ imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.
My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.
Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire’s, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9 would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.
Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.
Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.
Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.
Lord Henley
My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group—Amendments 6, 13, 16, 18, 29 and 32—partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.
I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.
The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women’s Day. The Government made the point that:
“Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences”—
my right honourable friend made it clear that we would bring forward amendments to the Bill—
“Offenders need to know that they will be brought to justice for making others’ lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime”.
He said:
“we’ve got to make sure that as a separate criminal offence, it’s combined with: better training for the police; better training for the probation service; better training for our courts; better action by technology, telephone and digital companies, so we stamp out this evil”.
Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.
Lord Campbell of Alloway
My Lords, briefly, I congratulate the noble Baroness on her amendment, which has filled a gap in criminal law. I also congratulate the Government on giving an assurance that they will deal with its implementation, which they need to think of with care because it is not going to be so easy to implement.
Baroness Brinton
My Lords, I am very grateful to the Minister for the Government’s considerable progress on stalking law reform since Report and for the government amendments laid before your Lordships’ House. I am also grateful for the amendments tabled by the noble Baroness, Lady Royall, which help to clarify some of the issues that many of us believe remain outstanding.
I am particularly grateful for the Minister’s clear response to the noble Baroness, Lady Royall, on her Amendments 10 to 12 which amend government Amendment 6. The issue around the Government’s new Section 4A and the insertion of the words “fear, alarm, distress or anxiety”, in whatever form that might take, as proposed by the noble Baroness, Lady Royall, really concern those of us who have been involved in stalking law reform for some time. There seems to have been confusion in some of the discussions outside your Lordships’ House. As long as “serious” and “severe” relate only to the psychological issues and not to fear of physical violence, that is a very helpful clarification. I am looking forward to the Commons consideration of Lords amendments next week.
The omission of those words in the government amendments today has caused complete consternation among victims, their families and the organisations working for stalking law reform. Those of us parliamentarians on the People’s Inquiry into Stalking Law Reform made it absolutely clear in our report that the serious psychological effects of stalking can be as devastating as violence. Often, the consequences are more long term—long after the physical bruises and the scars have diminished.
Last Thursday, three courageous victims—Tracey Morgan, Sam Taylor and Claire Waxman—who have all campaigned for stalking law reform for many years, discussed the need for reform and related it to their own cases. In his very welcome speech launching the reform on International Women’s Day, the Prime Minister made the point about long-term psychological damage to victims such as Tracey, Sam and Claire. I really hope that it was an oversight in the speed to get the government amendments out that these key and vital words were omitted from new Section 4A.
Last week, many victims and their families were talking at No. 10. They were initially overjoyed and relieved that at last the scourge of stalking would be recognised for the horrible and serious crime that it is and no longer lumped in, as we have said before in this House, with neighbourhood disputes. Many victims are diagnosed with post-traumatic stress disorder and others have breakdowns, all of which fits well with the description read out by the Minister.
Given the time that I have taken up in your Lordships’ House outlining the need for training and guidance throughout the criminal justice system, I was particularly pleased with the Prime Minister’s speech last week from which my noble friend quoted earlier in this debate. I am also pleased that another place will have the opportunity to discuss this key reform, as all the debate on stalking and the Protection of Freedoms Bill to date has been in your Lordships’ House. In particular, this will give Elfyn Llwyd MP, the chair of the People’s Inquiry into Stalking Law Reform, the opportunity to comment on these very welcome government amendments, even if some minor details need to be sorted out. The inquiry team, Protection against Stalking and the National Association of Probation Officers have worked cross-party and tirelessly to influence the Government. It has been a privilege to be a small part of that team.
I want to end by endorsing the Government’s amendments with the words of Tracey Morgan which seem particularly pertinent today. She said:
“The victims I hear from are saying the same things I was 15 years ago—what’s changed? We need to do more. This is about murder prevention”.
It is wonderful news that the Government are doing more and I know that that will prevent murder and other serious crimes against innocent victims of stalking. I hope that those who have long championed the change in the law will, at last, be able to hand the problem over to those in the criminal justice system, which is where it should be.
Baroness Howe of Idlicote
My Lords, as one of those who have taken part in the inquiry, I congratulate the Government on what they have come around to; that is, a serious awareness of the horrendous crime of stalking. In many cases the advent of the internet has been very valuable, although it is now quite often used for cyber stalking and this horrendous crime. It has to be tackled.
I also congratulate the noble Baroness, Lady Royall, on her attempt to produce the right form of words for this part of the Bill. On this point, I have one sadness, and that is that there is not a completely separate Bill on stalking. We all know how crowded our agendas are, but that would have been an important step. An actual Bill dedicated to stalking would stand out and attract everyone’s attention. In the mean time, I hope the Government will agree to the amendment tabled by the noble Baroness, Lady Royall. Picking up the threads, it sounds as if there really is a basis for giving the other place an opportunity to debate this important subject because I think that some of them are hardly aware of the issue. That would be an added plus.
There must be a clear understanding that what must be discussed are the horrendous psychological effects of this crime, which have been very well set out by the noble Baroness, Lady Brinton, who is an expert in the field. It is a form of psychological violence that may not be as visible as physical violence against women but, my goodness, the long-term effects are huge. With my fingers crossed, I hope that the right conclusions will be reached not just between all these Benches but between both Houses.
Baroness Hamwee
My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.
The point is to encourage the Minister—not that I think he needs to be encouraged—with regard to the terminology, “fear, alarm, distress or anxiety”, as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,
“threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional”.
As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.
Lord Hodgson of Astley Abbotts
My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.
My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.
Lord Marlesford
Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.
Lord Henley
My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.
I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.
The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill—I again pay tribute to the noble Baroness, Lady Royall—and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.
My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.
The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.
I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.
Baroness Royall of Blaisdon
I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.
I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.
On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand “inter alia”, even if the police in Cumbria would not.
I was disappointed by the Minister’s response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates’ court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates’ court—it will be a summary offence—and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.
The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister’s proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.
I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.
I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?
Lord Henley
My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12—all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments—I appreciate that we have one or two debates to go before then—she will feel it is not necessary to move them. We can discuss them after another place has discussed them.
Lord Harris of Haringey
Lord Harris of Haringey
My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.
The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.
I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,
“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.
The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:
“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.
Lord Bichard
My Lords, I will speak to Amendment 5, which is in my name. Since it is a complex issue, I hope your Lordships will bear with me while I explain precisely what is in that amendment. Inevitably, I may trespass on some of the ground that the noble Lord, Lord Harris, has already touched on.
Essentially, the amendment has four components. The first provides that anyone who permits an individual to work regularly and closely with children, in whatever setting and even if the activity is not regulated, can obtain an enhanced criminal record certificate, which will disclose any convictions and any intelligence held by the police about that individual and which is relevant to that employment. It is important to note that the responsibility for deciding whether such a check is necessary would in future rest with the employer and not be required by law. The employer would be the person who makes a judgment on whether such a check is needed, based on their knowledge of the activity and the local circumstances concerned.
The second component provides that the Secretary of State will offer guidance on what is meant by “regular and close contact”, which will help employers to make their decision.
The third part provides that the guidance should also recommend that enhanced criminal record checks be made where individuals work regularly and closely with children.
The fourth part of the amendment would ensure that the enhanced criminal record checks should also give access to suitability information relating to children under the provisions of the Police Act 1997. Put simply, this would give access to information about individuals who are barred from working with children or vulnerable adults in a regulated activity, and whose names therefore appear on one or other of the so-called barring lists.
The Minister may well find this last component of the amendment difficult. It might be argued that information that causes an individual to be barred from working with children in a regulated activity is not relevant to their working with children under supervision in a non-regulated activity, even if the contact is close and regular. I take a contrary view to that argument for the following reasons.
First, anyone working with a child in situations in which they have an opportunity to develop a bond of trust can groom that child and then exploit the bond of trust when they are not being supervised. No amount of supervision, however intensive, can prevent that bond of trust being established. We all know that the opportunities to exploit it are increasingly available, not least via social networking sites.
The second reason why I do not accept that argument, which was touched on by the noble Lord, Lord Harris, is that children build trust with individuals who work with them in, for example, youth clubs, colleges or sports clubs. However, that trust is not exclusive to those settings. If they encounter that adult on other occasions, they are likely to invest the same trust in them and therefore be vulnerable to them. That is why the issue for me is not, and never has been, the quality of supervision, but rather whether the adult might pose a risk to the child. If someone is on a list which bars them from working with children in unsupervised situations, it seems to me that that information should be made available to employers who are considering whether or not to allow those persons regular and close access to children. Not all noble Lords will be aware that one in five of the people on the barring list has not come in contact with the police; they are there because of information that has been provided—for example, by previous employers.
I ask noble Lords to envisage the circumstances whereby an individual is allowed to work with children on a close and regular basis following a CRB check, that individual then abuses a child and the employer subsequently discovers that the individual was on a barred list but that this information had not been made available to them because of this legislation at the time they took the decision to employ that person. That would be very difficult to justify and explain to the employer, the parent, or indeed to the public at large.
This amendment is not about allowing more CRB checks to be made; it is for employers to take that decision. It is not about the state requiring employers to do something which some might regard as unnecessary. It is simply about giving employers the data which are available and which will help them to make an informed decision. I have sought in this amendment to produce a system which is simple and proportionate. Therefore, I have avoided distinguishing between settings such as colleges, schools and clubs. Instead the amendment refers to “regular and close contact” wherever it occurs. I have left the final decision with the employer. I accept that the current arrangements are not proportionate and are too bureaucratic, but we must ensure that any revised arrangements are comprehensible, consistent across settings and place the safety of the child above all other considerations.
The Lord Bishop of Hereford
My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.
From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children’s choirs.
This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.
Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term “employer” throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for “employer” not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.
The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase “regular and close contact”. Those words could be a little slippery. It is difficult for us within our churches to be specific as to what “regular” means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but “regular” is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.
However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, “That is the nice Mr So-and-so who I know from church, so he is safe”. That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.
I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.
Baroness Walmsley
My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.
I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.
I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.
We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.
As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.
That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.
That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.
The Earl of Erroll
My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.
I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.
The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.
The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?
My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.
We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.
Baroness Howarth of Breckland
My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world—having spent more years in it than I am prepared to admit—dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.
This week, the Lucy Faithfull Foundation celebrates 20 years’ work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.
Baroness Heyhoe Flint
My Lords, I regret that I was not able to be present for the debate on Report, and I am therefore glad to have this opportunity to make brief comments on the progress that has been made on this part of the Bill. In the long innings of the Bill, I started off as an attacking batsman working with the sports and recreation sector in seeking to knock certain aspects of it out of the ground. I am now sufficiently reassured to play a steady, forward-defensive, strong and resolute stroke against the proposed amendment.
In previous debates, my sporting colleagues and I, including my noble friend Lord Addington, highlighted the concerns voiced by the sport and recreation sector, which has more volunteers than any other sector in the United Kingdom—no fewer than 2 million. The central concern was that the term “day-to-day supervision” was not workable for organisations that safeguard children in a wide range of specialised and unique environments. However, I very much welcome the clarity provided by the amended qualitative description of supervision, and was greatly encouraged by the assurance given by the Minister on Report that sports organisations would have precisely the discretion that they need in determining the appropriate level of checking for voluntary roles.
In counteracting the arguments put forward by the noble Lord, Lord Harris, I am grateful to the Government for having listened and responded in this way. My sentiments are echoed by the England and Wales Cricket Board, the Football Association and other members of the Sport and Recreation Alliance, which represents more than 300 governing bodies. The Government have struck the right balance and arrived at a proportionate place, and I look forward to hearing what the Minister will say today.
The governing bodies of sport are keen for this receptive dialogue to continue, and I welcome the Minister’s other assurances on Report that his department will work alongside the sport and recreation sector to develop guidance and implement the new safeguarding framework, including in the further education sector. The noble Baroness, Lady Walmsley, spoke about that. Organisations that administer sport and recreation will need to plan well in advance of changes to ensure that the new system is implemented effectively. Therefore, anything that the Minister can say to reassure the hard-working staff of these governing bodies about the timeline and the process of the consultation will be greatly appreciated.
In conclusion, my key point, having had several in-depth meetings with the Minister and his team, and consulted very widely with national governing bodies of sport, is that we have been assured that safeguarding children will always be a priority of this Government. Safeguarding is the responsibility of everyone—the Government, employers, voluntary organisations and communities. The Government can ensure proper eligibility for criminal record disclosures for those working with vulnerable groups. However, it is also the responsibility of employers and voluntary organisations to ensure that they have in place proper, risk-based safeguarding mechanisms that protect children, and that they do not rely solely on a criminal record or barred-list check. Additionally, taking some supervised work out of regulated activity will give employers and administrators scope to make the appropriate judgment, and will reduce the burden on employers and encourage volunteering.
We in the sector that I represent have been assured that statutory guidance on supervision will be provided. The Bill makes it clear that supervision must be reasonable in all circumstances for protecting the children concerned. People working closely with children but not within regulated activities will be eligible for enhanced criminal record certificates. It is not right to provide barred-list information on enhanced criminal record certificates that does not relate to regulated activity. The information is not relevant to employers who are not providing regulated activities, and could lead to too many people being barred from work in which barring is not relevant. This action could significantly expand the scope of the scheme, possibly to greater numbers than proposed by the old scheme. With this proportionate and balanced understanding and government assurances, I feel it would be unwise to support Amendment 5 because it would take the regime back to something that would be disproportionate and would discourage volunteering across all sectors of life.
Baroness Butler-Sloss
My Lords, I very much support what the noble Baroness, Lady Howe, said from her enormous experience. I suggest that the House and particularly the Minister should take very careful account of it. Saying that means that I very much support what the noble Lord, Lord Bichard, said about his amendment, which I also support. I do not at the moment think that I support what the noble Lord, Lord Harris of Haringey, said. The amendment tabled by the noble Lord, Lord Bichard, is the one that matters.
The important point is regular and close contact with children. I listened with some dismay to the noble Baroness, Lady Heyhoe Flint, because I am not sure that she is talking about what we are talking about. I do not believe that what she said is really what we are concerned with on this amendment. I am a school governor—I am going to a governors’ meeting tomorrow—and I have been CRB checked, but I cannot see for what reason I should be CRB checked because I never see a child without someone else there. Even when I go around the school, I am always accompanied. That is not what this amendment is about. It is about regular and close contact with children, as I said, and that is the point on which noble Lords should concentrate.
Baroness Randerson
My Lords, I thank the noble Lord, Lord Bichard, for putting forward this amendment. His huge experience and understanding of this issue give this amendment strength across the Chamber. Noble Lords will be aware that in the earlier stages of the Bill I put down amendments in relation to further education in particular. From the start, I have been very concerned that the Government’s vision of the world of education is just too neat and tidy and has clear demarcation lines. In practice, life is not like that. The Association of Colleges, which represents the colleges, shares those concerns. It suggested that further education and sixth-form colleges should be placed in the same category as schools. The amendment tabled by the noble Lord, Lord Bichard, uses a form of words that takes a different, but appropriate, approach. It is a subtle, flexible approach that is suitable across a variety of settings, not just in further education or the world of education as a whole but in the church, voluntary organisations, leisure activities and so on.
In practice, young people develop relationships of trust with people to whom they can directly relate and who are helpful to them. Indeed, they often fight shy of relating to, liaising with or trusting the people who are formally in charge of a situation. Very vulnerable young people will instinctively shy away from figures of authority, so very often they develop a bond of trust with the lady in the canteen who gives them a extra-large helping, the IT technician who helps them sort out their computer, the lady in the library who does not give them a fine when they bring a book back late, or even the groundsman who has found them smoking secretly in a corner and has not told people in authority. Therefore, it is not easy to define that situation.
Lord Hodgson of Astley Abbotts
My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.
At Second Reading, I made it clear that I thought the activities of those who preyed on children—or vulnerable adults, as the noble Baroness has just said—were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser—I am pleased to see him in his place on the Front Bench—said in his winding-up remarks:
“It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety”.—[Official Report, 8/11/11; col. 219.]
I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.
The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife’s cousin is a forensic pathologist, and he undertakes for the noble Lord’s department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, “Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free”. Because I am squeamish, I also say, “Isn’t it rather strange to be dealing with corpses?”. He said, “By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team”. Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist’s stories of the things he has seen are harrowing beyond belief.
On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,
“first, that we cannot create a risk-free society; secondly, that the steps we take to minimise risk should be proportionate. For those reasons, I very much sympathise with and support the Government in seeking to strike the right balance in this very difficult area”.—[Official Report, 6/2/12; col. 107.]
I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.
However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord’s amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.
On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else’s responsibility.
Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:
“We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job”.
I cannot for the life of me see what is “invidious” about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, “I am afraid this is not something which you can become involved with because of the role you are now undertaking”. When I read that the,
“day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”,
I believe that the Government have got the balance about right.
On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:
“Guidance produced for the purposes of subsection (3) … shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice”.
The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.
We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.
Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.
It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.
Lord Peston
Is the noble Lord saying that if we accept these amendments, there would be no net increase in the number of children who would be protected?
Lord Hodgson of Astley Abbotts
I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.
Lord Addington
My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench—“better than half a loaf” was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.
I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.
I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.
Lord Rosser
My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for “unregulated posts”, but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the “barred status” of an individual for posts which fall outside regulated activity.
It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.
The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made.
It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been “barred” by the Independent Safeguarding Authority from regulated work with children should be allowed to work under “supervision” with children. They have, unfortunately, not yet listened to children’s charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.
It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else’s safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.
The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the “barred status” of individuals and to recommend this as good practice.
We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.
Lord Henley
My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.
I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench—I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.
No doubt the noble Lord will make up his own mind about what to do with the amendment. He has had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.
The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what “regular and close” means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person’s barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.
On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.
On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord’s proposal in this area, I believe that we are already meeting the substance.
Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.
The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.
At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.
However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing—I am grateful that some have—in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word “barred” even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.
However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.
I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word “barred”, allowing the employer to make an informed choice.
The noble Lord, Lord Bichard, said on Report:
“I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice”.—[Official Report, 15/2/12; col. 798.]
I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.
Lord Bichard
I am seeking clarification in order to be helpful. Am I hearing from the Minister that in future the barring authorities will make available to the police the information on which they have made their decision, but not necessarily the decision, and the police can then decide whether that is relevant information to make available to employers who carry out a criminal record check? To be clear, is that what is now being said?
Lord Henley
That is what I want to make clear, but as long as the information is relevant. We do not want irrelevant information passed on because of the damage that could possibly cause to the individual concerned.
Lord Bichard
This dialogue cannot and will not go on for ever but, of course, under the current arrangements, the police make a decision about whether the information they have on convictions is relevant. Therefore the Minister is suggesting that they would make the same decision about information they receive from the barring authorities about individuals. Is that correct?
Lord Henley
My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate—no more and no less.
Lord Harris of Haringey
I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.
The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.
Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,
“regular and close contact with children”.
Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.
The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.
It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.
The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.
Lord Bichard
“Voluntary application for relevant information: children
(1) The Secretary of State shall by regulation ensure that any person who permits, or is considering whether to permit, an individual to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, may be permitted to obtain a relevant enhanced criminal record certificate.
(2) In this section “relevant enhanced criminal record certificate” means an enhanced criminal record certificate issued under section 113BA of the Police Act 1997, which includes by virtue of that section, suitability information relating to children.
(3) The Secretary of State shall produce guidance on the interpretation of the terms “regular and close contact with children” under subsection (1) of this section.
(4) Guidance produced for the purposes of subsection (3) of this section shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice.
(5) In table 1 of Schedule 7 to the Safeguarding Vulnerable Groups Act 2006, at end insert—
“20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4. | Children”” |
Lord Bichard
I thank the Minister not just for the discussion today but for discussions before today with other Members as well as myself. I thank, too, all those who have participated in this debate, which has on occasions lapsed into criticising the existing arrangements. I agree with those who say that we have too many checks too often and that they deter people from volunteering. There is no question about that, which is why the Government have put forward those proposals. My amendment accepts the Government’s fundamental position and, let us be clear, does not produce more bureaucracy or ticking of boxes. It concerns only those adults working regularly and closely with children, not those who just happen to have some contact with children on an irregular basis.
At the end of the day, what matters is that employers who will now make the decision have the information that we have to enable them to make the best possible decision. As someone said, that will not guarantee that children will not continue to be abused, because you cannot guarantee that; but it is very difficult for us to justify a situation in which information is available but not made available to those who will make the decision.
The question therefore comes down to whether or not the undertakings given today are sufficient to enable me not to press the amendment to a Division. I am conscious that in this House a lot of people feel very passionately about this issue and are very concerned about this vote. I agree with the noble Lord, Lord Harris, that the proposal made in the Bill is convoluted; it is not one that I would have thought was the obvious way forward. On the other hand, it ensures that the information that society has available about an individual is available to the person who makes the decision if the police make their own decision that it is relevant. It is difficult for me to pursue the amendment purely because we are not giving information that an individual has been barred or not barred from regulated activity. On the basis that the information that led to the barring or not barring is available to the police, who can then make a decision about whether it should be made available to the employer, I shall not press my amendment.
Lord Henley
“StalkingOffences in relation to stalking
(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert—
“2A Offence of stalking
(1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and(b) the course of conduct amounts to stalking.(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,(b) the acts or omissions involved are ones associated with stalking, and(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following a person,(b) contacting, or attempting to contact, a person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to a person, or(ii) purporting to originate from a person,(d) monitoring the use by a person of the internet, email or any other form of electronic communication,(e) loitering in any place (whether public or private),(f) interfering with any property in the possession of a person,(g) watching or spying on a person.(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.
(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.
(6) This section is without prejudice to the generality of section 2.”
(2) After section 4 of that Act (putting people in fear of violence) insert—
“4A Stalking involving fear of violence
(1) A person (“A”) whose course of conduct—
(a) amounts to stalking, and(b) causes another (“B”) to fear, on at least two occasions, that violence will be used against B,is guilty of an offence if A knows or ought to know that A’s course of conduct will cause B so to fear on each of those occasions. (2) For the purposes of this section A ought to know that A’s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.
(3) It is a defence for A to show that—
(a) A’s course of conduct was pursued for the purpose of preventing or detecting crime,(b) A’s course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) the pursuit of A’s course of conduct was reasonable for the protection of A or another or for the protection of A’s or another’s property.(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.
(6) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
(7) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (6) convicted before it of an offence under section 2 or 2A as a magistrates’ court would have on convicting the person of the offence.
(8) This section is without prejudice to the generality of section 4.””
Baroness Royall of Blaisdon
I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.
Lord Henley
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”
“( ) section 53 and Schedule 3,”
Baroness Stowell of Beeston
In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.
“(ja) the amendments of Schedule 1 to the Criminal Justice and Police Act 2001, and Schedule 5 to the Sexual Offences Act 2003, in Part 10A of Schedule 9,”
“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”
Baroness O'Neill of Bengarve
My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.
I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.
So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.
Lord Oxburgh
My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes—and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.
Under current legislation, universities are regarded as “publicly owned companies” and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government—a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.
On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O’Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.
One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.
Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.
A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government’s response.
Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.
Lord Sutherland of Houndwood
My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.
The Earl of Erroll
My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.
Baroness Brinton
My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O’Neill, outlined earlier. I am grateful for the Minister’s comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.
Lord Henley
My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.
We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.
The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.
I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.
We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.
I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.
On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.
However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.
However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.
As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.
Baroness O'Neill of Bengarve
My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.
However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.
Lord Henley
Lord Henley
My Lords, in moving Amendment 20, I will speak also to Amendments 21 to 25. On Report, I gave notice to the House that the Government were considering whether it would be helpful to clarify further the scope of the regime for retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008, as substituted by Part 3 of Schedule 1 to the Bill. We have concluded that new Section 18 of the 2008 Act, as currently drafted, is too broad and requires further clarification so that the intended scope of the provisions properly provides that crime scene material is excluded from any destruction regime.
To this end, Amendment 20 provides that new Section 18 applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland that is not subject to existing statutory restrictions and is held for the purposes of national security. Amendments 21 to 23 and Amendment 25 provide that material taken under a number of other statutory regimes is subject not to the destruction regime in the Counter-Terrorism Act but to the rules in those enactments. Amendment 24 corrects a minor drafting error regarding the relevant section of the Intelligence Services Act 1994 to be included in the list of existing statutory restrictions. I beg to move.
Lord Henley
“( ) paragraph 18(2) of Schedule 2 to the Immigration Act 1971;”
“( ) paragraphs 20(3) and 20A to 20J of Schedule 8 to the Terrorism Act 2000;( ) section 56 of the Criminal Justice and Police Act 2001;( ) paragraph 8 of Schedule 4 to the International Criminal Court Act 2001; ( ) sections 73, 83, 87, 88 and 89 of the Armed Forces Act 2006 and any provision relating to the retention of material in an order made under section 74, 93 or 323 of that Act;”
Lord Henley
“( ) is a person in relation to whom a moratorium period, under a debt relief order made under Part 7A of the Insolvency Act 1986 or Part 7A of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)), applies,”
“( ) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to the Insolvency Act 1986 or Schedule 2ZB to the Insolvency (Northern Ireland) Order 1989,”
Lord Henley
“41A (1) Section 120A (refusal and cancellation of registration on grounds related to disclosure) is amended as follows.
(2) In subsection (3A) omit paragraphs (b) and (c).
(3) Omit subsections (3B) and (3C).
(4) In subsection (3D)—
(a) for “subsections (3A) to (3C)” substitute “subsection (3A)”,(b) for “those subsections” substitute “that subsection”, and(c) omit the words from “, except” to the end of the subsection.”
“Part 10AStalkingProtection from Harassment Act 1997141A (1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 1(2) (circumstances in which a person ought to know that a course of conduct amounts to harassment) after “this section” insert “or section 2A(2)(c)”.
(3) In section 4 (putting people in fear of violence)—
(a) in subsection (5) after “section 2” insert “or 2A”, and(b) in subsection (6) after “section 2” insert “or 2A”.Crime and Disorder Act 1998141B (1) Section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc.) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a)—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and (b) in paragraph (b)—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.(3) In subsection (5) for “the basic offence” substitute “either basic offence”.
Criminal Justice and Police Act 2001141C In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (powers of seizure to which section 50 of that Act applies), after paragraph 63, insert—
“Protection from Harassment Act 199763A The power of seizure conferred by section 2B(2) of the Protection from Harassment Act 1997 (seizure of material relevant to stalking).”
Sexual Offences Act 2003141D In Schedule 5 to the Sexual Offences Act 2003 (relevant offences for the purposes of notification and orders)—
(a) in paragraph 56A—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and(b) in paragraph 57—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.Criminal Justice Act 2003141E In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified violent offences), in paragraph 57—
(a) after “section 4” insert “or 4A”, and(b) after “violence” insert “by stalking or otherwise”.”
Lord Henley
“( ) the Milk (Cessation of Production) Act 1985,”
“In section 120A— (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from “, except” to the end of the subsection.” |
Lord Henley
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.
Lord Ponsonby of Shulbrede
My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.
It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.
The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.
The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.
I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.
Baroness Hamwee
My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.
Lord Henley
My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.
As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to reassure the noble Lord and other noble Lords—I think that the noble Lord is a lay magistrate—that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates’ courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
19:24 - Division on Amendment 74. - Ayes: 179 / Noes: 198 - Amendment 74 disagreed.
19:56 - Division on Amendment 74A - Ayes: 151 / Noes: 194 - Amendment 74A disagreed.
Lord Bach
My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.
Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.
Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,
“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
Lord Justice Stanley Burnton said:
“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.
Therefore, legal aid is necessary to ensure justice in an overly complex system.
The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,
“individuals will generally be able to represent themselves”.
As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.
I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.
Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.
Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.
By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.
Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.
This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.
I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.
Lord Pannick
My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.
Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.
I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.
Lord Clinton-Davis
I will not detain the House for long, but recall only too well the situation posed when I was an MP conducting surgeries on Friday nights. There were many occasions when I had to go to Heathrow to see people who were being deported. They were desperate. They had no alternative. I would not like the situation to be repeated, but I fear that it will be. The Government have to convince this House that desperate people are not to be accommodated at all. That situation is impossible to defend. The proposals being put forward by the Government today are so reckless that they ought to be defeated. It is absurd that ordinary people who are so desperate should have no alternative. That situation should not be encountered at all.
Lord Newton of Braintree
My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.
The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.
I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.
I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?
We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.
Baroness Butler-Sloss
My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,
“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.
That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.
I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.
What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.
Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.
Baroness Hamwee
My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.
I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.
I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.
Lord Borrie
My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.
I remind your Lordships that many branches of administrative law—or what is nowadays called that—were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: “No more law, no more lawyers”, when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.
If I were given the choice between simplifying that and my noble friend’s amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.
Lord Woolf
My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim—the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by excluding them through legislation that Parliament has passed in a series of Bills—legislation which has made the law into the state in which it is now and which has already been vividly described.
In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether—I emphasise “altogether” because we are talking about taking it out of scope—could have very serious consequences for the administration of justice.
If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.
Lord Judd
My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.
Lord Avebury
My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.
Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.
Lord Boswell of Aynho
My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.
I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.
These are complex cases. My difficulty in saying that we need to keep them within scope is—thinking aloud—in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the amendment moved by the noble Lord, Lord Bach, as indicated by many contributors to this debate, would bring legal aid within scope for all immigration cases. I readily understand why noble Lords have put forward the amendment and I am sure the noble Lord will accept, as I think he indicated in his remarks, that just because we seek to take many immigration cases out of scope does not mean that we do not value the contributions that immigrants have made. I think the noble Lord, Lord Bach, acknowledges that we certainly do.
To make a change to the Bill in a way proposed by this amendment causes us to look at the rationale and the basic structure of what underlines this legislation at a time of limited resources. As my noble friend Lord Boswell has just said, this is a time when difficult decisions have had to be taken and when there has been a need to focus legal aid on those who need it most in the most serious cases. My noble friend said that he hoped we would consider it. It can be taken as read that, in an area as sensitive as this, for the reasons that have been advanced by many of your Lordships in contributions to this debate, this is obviously a matter which has been given serious consideration. I am confident that all who took part in the debate will appreciate that this is not a blanket exclusion of immigration cases. We have made it clear in the immigration sphere that we are retaining legal aid for asylum cases, which we believe is absolutely essential because the issues at stake can, at times, be as serious as life or death. It is important, too, to recognise that we will protect legal aid for immigration detention and where there is domestic violence. We are also keeping legal aid for most immigration judicial review cases, which are very often the most complex cases.
This approach means that under our reforms we will continue to spend £70 million of the current £90 million budget in relation to immigration cases. My noble friend Lord Newton talked about a disproportionate share. I think that our reform, with an expectation that some £70 million out of the current £90 million budget will continue to be spent, is an indication that this has been examined in some detail.
However, the corollary of protecting legal aid, particularly in the key areas to which I have just referred, is that it is necessary to be more far reaching in others. At a time when our fiscal difficulties have been acknowledged by a number of contributors, I do not see how it is always possible to justify the extended use of limited resources; for example, for foreign students who may wish to study here but who do not have a connection with the United Kingdom. When difficult choices have to be made sometimes it is very easy to accept the principle that those choices are necessary but it is more difficult when you try to translate them into specific areas.
I shall pick up specific points made by a number of contributors, not least by the noble and learned Baroness, Lady Butler-Sloss, who acknowledged the accession to the convention that was recently confirmed. The noble and learned Baroness knows, because we debated it in Committee, that the Government provide £2 million per annum for support to trafficked victims to help to rebuild their lives and that can include information about legal rights. I think it is known by your Lordships that that £2 million is distributed by the Salvation Army. The convention requires legal counselling, including information about people’s rights. There are no immigration applications as such that trafficking victims need to make. They are automatically granted 40 days' leave; then they may be granted 12 months’ leave if they are assisting the police, or up to three years’ leave if there are compelling circumstances to do so. That is decided on the known facts of the case and they do not need to apply for it.
Lord Newton of Braintree
My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.
Lord Wallace of Tankerness
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.
The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.
I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.
“Debt management and relief or remedyCivil legal services in relation to any debt management relief or remedy available under Part 5 of the Courts, Tribunals and Enforcement Act 2007.”
Lord Stevenson of Balmacara
My Lords, I rise to speak to Amendments 74A and 74B about legal aid for debt, and in so doing I declare an interest as chair of the Consumer Credit Counselling Service. Under the proposals in the Bill, all legal aid for debt issues, including advice, is excluded from the scope of legal aid, except for legal services provided in relation to a bankruptcy order against individuals, under Part IX of the Insolvency Act 1986, where the individual’s estate includes their home. The purpose of our amendments is to reverse that proposal. We believe that it starts from the wrong premise, that it will not save money and that we will lose an effective and well used remedy, the debt relief order, which helps the poorest and most indebted in our society.
Debt problems are sadly increasingly common, and unless dealt with promptly and effectively can have a major impact on individuals, families and communities. A recent report from the Legal Services Commission confirms that there are a variety of causes of debt problems, the most common being changing circumstances such as ill health, relationship breakdown and loss of employment. Qualitative interviews, and I confirm this from my own experience, often reveal particularly distressing impacts on parents’ relationships with their children and on the wider family. More generally, debt problems have been found to make it difficult for people to carry on living normal lives.
In the same report, the average cost to the public and in lost economic output is estimated at over £1,000 per debt case, with more serious problems involving costs of many times this amount. So we can say with some confidence that debt problems are serious and that they can, and often do, have direct consequences. We therefore reject the premise that debt cases should be removed from the scope of legal aid.
When we debated this issue in Committee, the point was made that all debt problems are underpinned by complex contractual obligations and that, in the majority of cases, such advice and support take place within a legal framework that will involve issues of liability, consumer credit contracts, creditors’ enforcement powers, statutory debt remedies and enforcement processes within the court system and beyond.
As I have mentioned already, there is another dimension to this, which is that most, if not all, of those who contact my charity and other providers of debt advice almost always have other issues, such as illness, employment problems or relationship problems that have either caused the debt problem or contributed to it. It is this compounding effect that makes the withdrawal of legal aid for all debt issues such a simplistic proposal. Therefore, my second point is that debt problems should not be removed from the scope of legal aid because the economic and social consequences far outweigh the savings that are being proposed.
Our third point is expressed in Amendment 74B. We think that the withdrawal of legal aid for debt will in effect lead to the closure of the debt relief order system, which is operated by the Insolvency Service. DROs can be considered only by application via approved intermediaries working for organisations that have to be approved by the Insolvency Service. Approved intermediaries are usually experienced debt advisers, the vast majority of whom are based in citizens advice bureaux around the country, and they are currently funded by legal aid.
In 2011, nearly 29,000 debt relief orders were made, of which 70 per cent were processed by CAB debt advisers in their role as authorised intermediaries. Citizens Advice has made it clear that it will not be able to employ a sufficient number of approved intermediaries if legal aid is withdrawn. If the Bill goes ahead in its present form, it is clear that the DRO system will not survive. More than 20,000 families a year who would otherwise be able to write off their debts will not be able to do so.
It is a classic Catch-22; you can proceed with a DRO only through an authorised intermediary approved by the Insolvency Service. If the legal aid funding is cut, there will be no authorised intermediaries and the DRO scheme will simply wither on the vine. This is not just a cut in the legal aid bill; it is the end of a good and effective debt solution introduced in 2007 and used since then by thousands of families faced with disaster. It simply should not happen. I beg to move.
Baroness Coussins
My Lords, I support Amendments 74A and 74B, to which my name has been added. I declare an interest as president of the Money Advice Trust. In that capacity I have sat in as an observer at the National Debtline and the telephone helpline service that the Money Advice Trust runs, and I have heard first hand some up-to-date examples of the complexity of debt problems. This has brought me to the conclusion that the problem here—which these amendments are designed to resolve—is that when this proposal was framed in the Bill, sufficiently careful attention was not paid to the distinction between legal advice for people with debt management problems and general debt advice.
The Money Advice Trust tries to prevent existing debt problems running out of control, especially when they are tied up with other issues such as mental health problems or the threat of repossession. While we are talking about complex problems that require the advisers to be quite expert—and certainly sensitive—we are nevertheless talking about first-stage generalist debt advice. This is way beyond the point at which the client needs legal advice.
My understanding is that the Government view debt advice as “not strictly legal work” and feel comfortable about the withdrawal of legal aid because they expect that services such as the Money Advice Trust’s debt helpline will provide appropriate advice services instead by phone—the withdrawal of legal aid is neither here nor there. As I understand it, this shift in service responsibility has not even been discussed, formally or informally, with the Money Advice Trust, and it is precisely because the kind of debt advice that the Money Advice Trust provides is different from advice that is “strictly legal” that legal aid needs to be retained.
The Money Advice Trust describes what it provides as “assisted self-help”—preparing budgets, helping clients seek additional benefits, helping them calculate acceptable repayments to creditors, and so on—but this is not legal advice. The Money Advice Trust is not equipped to provide legal advice; for example, it cannot advise clients on their chances of success in court or prepare them for court hearings, or how to get statutory debt relief or challenge collection and enforcement actions. If people needing formal legal advice were to rely on the Money Advice Trust, it simply would not have the capacity or the expertise to help them. The 200,000-odd people who go to that service every year would get much poorer outcomes.
In the long run, the cost of the gap in provision that would be created by the withdrawal of legal aid in these circumstances would end up being far greater, and would therefore frustrate and subvert the Government’s perfectly reasonable objective of saving money. People with debt problems need the services of organisations such as the Money Advice Trust but they may also need formal legal advice, and when and if they do, it would be uncivilised to deny them access to legal aid.
I urge the Government to think again carefully about the distinction between legal advice and more generalist debt advice of the sort that this charity provides, and to accept these amendments.
Lord Clinton-Davis
I will not follow the noble Baroness because she made an unanswerable case. I support her 100 per cent.
I want to talk primarily about unfair dismissal—
The Minister of State, Ministry of Justice (Lord McNally)
The noble Lord, Lord Clinton-Davis, was always known for his impetuosity.
I pay tribute to the noble Lord, Lord Stevenson, and his ongoing interest in debt matters. However, this amendment would have the effect of broadening the availability of legal aid for debt cases, contrary to our current proposals, which are to retain legal aid for priority debt cases only, where the individual’s home is at immediate risk of possession because of rent or mortgage arrears or involuntary bankruptcy.
It is never an easy decision to restrict the availability of funding but economic reality dictates that we focus scarce resources on the cases that are the highest priority. The Government have taken a principled approach to making spending reductions, prioritising funding for those categories of case that are most serious, such as where life, liberty or immediate loss of home are at stake. The necessary corollary of protecting funding in the most important areas is that we have to make tougher choices in the lower-priority areas.
When making these decisions, we have taken into account the presence of alternative appropriate forms of advice. It is simply not the case that legal advice is the only—or even the best—response to debt problems. Figures show that liability for the debt itself was reported as successfully contested in fewer than 2 per cent of cases in 2009-10, and also reveal that 62 per cent of legal help funding for debt matters was spent not on complex matters of law but on negotiating payment arrangements and advising clients on managing their affairs better.
We recognise that debt problems can be difficult and stressful for the individuals concerned, but we believe that what people often need is practical advice and support, rather than specialist legal advice. This help is quite widely and effectively available from organisations such as Credit Action, the National Debtline, the Consumer Credit Counselling Service and the Insolvency Service inquiry line and website. Local authorities also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust, to which the noble Baroness, Lady Coussins, referred, has recently launched “My Money Steps”, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online “Debt Remedy” service.
Such sources of help are best placed to deal with issues like debt relief orders, which this amendment suggests should be brought back into the scope of legal aid. These orders are relatively informal procedures, used by people who owe limited amounts of money and do not have assets. Indeed, the current legal aid scheme does not pay for their completion.
Given the availability of alternatives, and the pressing choices forced upon us by the economic situation, it does not seem a wise use of scarce resources to continue funding widely available legal advice, much of which replicates advice available elsewhere. We must move away from the assumption that for many problems that are fundamentally non-legal, the only answer is for the state to pay for legal advice.
I understand that this amendment is motivated in part by the noble Lord’s concerns about funding for citizens advice bureaux to provide debt advice. As I have said in earlier debates, we share that desire to see what can be done to help to ensure sustainability for the non-profit sector. However, let us not overstate the impact of our changes in legal aid on CABs. Legal aid funding is intended for specialist advice, not for cross-subsidy of other activities. As a matter of practice, in 2010, 85 per cent of all bureaux funding came from sources other than legal aid and half of all bureaux do not hold a legal aid contract at all. Moreover, it should be borne in mind—I am sure that the Opposition will be glad to know this—that we have already provided £20 million, which has come ahead of reductions in legal aid spend.
It is worth remembering that CABs have not had any cut in legal aid spend and will not until 2013. Of that £20 million, £16.8 million assigned to England is being used for the Advice Services Fund to support not-for-profit providers in delivering essential advice on debt, welfare benefits, employment and housing. Despite the concerns of the sector, the Money Advice Service will continue resourcing the existing free face-to-face debt advice services after 31 March, so that people in need have access to good, free advice. The Financial Services Authority has agreed to fund this provision from April.
I also understand that the Cabinet Office’s review is expected to conclude shortly and will provide recommendations on proposals to secure long-term sustainability of the sector. As my noble and learned friend Lord Wallace pointed out, it is only nine days to my right honourable friend the Chancellor’s Budget. Therefore, I would ask the House to be patient and to allow us to bring this important work to its conclusion.
It is always easy to make the case for spending but tough times require tough decisions. I hope that even our critics accept that we are making genuine attempts to protect the not-for-profit advice sector, not least by the pressures brought to bear by my noble friend Lord Shipley at earlier stages of this Bill and by other Members of this House who have raised the specific issue of the CABs and the not-for-profit sector. I have given assurances about this and, against that backdrop, I urge the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I thank the noble Baroness, Lady Coussins, for her contribution to this debate and for sharing her experience of working directly in this field, which I echo. I recognise many of the points that she made around that. It was also nice to have the unprompted support of the noble Lord, Lord Clinton-Davis. I seem to be having a little run of these things because the previous time I tried to speak about this subject, the noble Lord, Lord Best, came in on housing, which, although again relevant, was not exactly helpful to my support. Never mind, we will battle on.
At last weekend’s Lib Dem conference, a Motion was passed calling for:
“The protection of fair and equal access to justice, through … A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
It was unanimously passed but I notice that the Minister did not mention it when he made his remarks a few minutes ago.
A lot of the points that I made, which were picked up by the noble Baroness, Lady Coussins, were about the difference that had to be made between legal advice and generic advice. It is certainly true that a lot of work is going on in the generic debt advice field but we have been facing problems in terms of legal advice. I notice that in his comments the Minister made more of a case for support of the voluntary sector in this area, which of course we are grateful to have, than about the individuals who we think will be affected by this. For example, if the bailiffs are at the doorstep seeking to seize someone’s goods and chattels, I think that everyone in this House would agree that they are reasonably said to be facing serious direct consequences. Yet, under the present proposals, they would neither be eligible for legal aid to contest the original order nor would they be able to access legal aid to challenge the manner in which the order had been carried out. Indeed, we know a lot about that. There are quite serious difficulties within the legal advice sector of debt which have not really been picked up in this debate so far.
It was interesting that the Minister made the point that currently debt relief orders were not being funded to any great extent by legal aid and that, to some extent, legal aid should perhaps not be used at all for this. The key reason why the DRO scheme is successful is its lower cost, which was much trumpeted by the Insolvency Service. That is because the administration fee is £90, of which £80 goes to the Insolvency Service, leaving £10 for those who have to administer it. I have looked carefully at the way in which these forms are created. It would take me a great deal of time to work through these things and I am an accountant. However, specialist support and advice is needed. I think that it is ingenuous of the Minister to say that somehow this will survive. My charity estimates that it costs us about £350 per case to deliver a completed DRO. Where will that money come from? I do not think that we have had any answer to that.
Finally, the way in which the noble Lord went on seems to suggest that he has not read the BIS Select Committee report on debt management, which was published last week. The report states:
“Citizens Advice informed us that the legal aid budget for debt advice in England and Wales is due to fall by 75 per cent from 2013”.
The noble Lord admitted that there would be some changes after 2013. The report continues that the,
“figures, from the Justice Department, suggest that the number of people currently helped with debt problems will fall by 105,000”,
which is a significant number.
Later in the report, a BIS Minister is reported as recognising that,
“the cuts to legal aid could be a problem. Clearly for particularly some Citizens Advice Bureaux and other advice agencies, it may well have quite a big impact … I am afraid these are not easy times. There are cuts being made”.
The situation facing those in debt in this country—very often not of their own accord and they certainly are not the feckless poor—is really difficult. I do not think that these proposals will help. I should like to seek the opinion of the House.
“Unfair dismissal1 (1) Civil legal services provided in respect of employment cases where a person has been unfairly dismissed.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”
Lord Bach
My Lords, the House will remember that we had a robust debate on this issue in Committee and some valuable contributions were made, particularly by the noble Lord, Lord Pannick. I shall refer to some of the points he made in a moment. Legal advice for employment law matters is used by around 15,000 people a year, and at current levels we spend £4 million on it, which works out at around £300 per advised person. This advice deals with issues such as unfair and wrongful dismissal, redundancy, contract disputes, discrimination, strike action, data protection and employee confidentiality, and wage issues such as when people are paid below the minimum wage. It goes without saying that these issues are of considerable importance to the individual and to the state.
Someone who is dismissed and is unable to get fair recompense or their job back becomes a burden on all taxpayers. It is one that most of us are willing to bear. Jobseeker’s allowance is a safety net for precisely these kinds of people, but it is one that we should not bear unduly. Legal advice is valuable when attending a tribunal because the other side, that of the employer, is nearly always represented, certainly by a lawyer and often by counsel. The inequality of arms between a cleaner who is being paid below the minimum wage and their employer’s counsel is substantial. There is an alternative to legal aid, of course—that of damages-based agreements. But those agreements are not yet widely available and they are not available at all for certain classes of case. Worse, they leave the most impecunious sometimes at the mercy of predatory claims managers.
In Committee, the noble Lord, Lord Pannick, outlined four particular concerns. First, he highlighted the importance of employment rights. He contrasted these with environmental pollution rights, which remain in scope. The second was the point about equality of arms and the injustices that flow from that. The third point was the illusory nature of the savings in that through state benefits we will essentially subsidise bad employers, who will not be brought to justice. His fourth point highlighted a perverse consequence of the Bill as it is now drafted. Given that discrimination remains in scope, we are going to see an awful lot of people tacking discrimination claims on to their dismissal claims. The noble Lord may remember that such a problem arose when defamation was not within the scope of legal aid but malicious falsehood was. That led to many legal aid cases being brought under the Trojan horse of malicious falsehood, where the most appropriate tort for that was defamation. That loophole was closed in 1999, but this Bill as drafted intends to reintroduce a number of what we would call perverse incentives, of which this is perhaps the most obvious.
As I have said, employment legal aid costs £4 million a year, but accepting this amendment will not cost £4 million a year. The amendment does not change the Government’s ability to set their own budgets—rather, it is a statement of principle that employment law is important and complex, and that victims of abuse need redress and advice on how to seek that redress. EJ Cohen was cited the other day in aid of legal aid; he said:
“The State is not responsible for the outbreak of epidemics, for old age or economic crisis. But the state is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor”.
Employment law exists to protect citizens—hard-working ones, often—from unfair and unlawful practice by employers. At its best, it evens up the natural imbalance between the rights of employers and those of employees. We did not create those laws out of folly, but because there was abuse after abuse which forced us to act. Many good employers are grateful for the fact that good, fair employment laws exist. However, despite these laws and the access to justice that was promised when legal aid was introduced for employment law, there remain—and the Government have to take this into account—some bad employers out there.
Lord Clinton-Davis
I follow my noble friend on this issue. I apologise for confusing the amendments in the previous debate.
I hope that the Liberal Democrats will abandon their rather erratic behaviour on this occasion. The unfair dismissal amendment is vital for employees who are not unionised or where the trade unions are unable to act. I do not think there is any real chance of such employees being able to pursue their remedies effectively. That is the crux of the matter. Quite often the claims they wish to make are complex and they need professional advice. Unfair dismissal affects their livelihoods—make no mistake about that—and what is proposed in the Bill represents a bonus for unfair employers. That is wholly out of accord with what we on this side seek to achieve.
As to unemployment disputes, the significance of this proposal places an unfair burden, again, on the employees. How are they going to pursue their claims without the necessary machinery provided by the trade unions where this is not possible, or where they are expected to pursue their claims themselves without any professional advice? It is a wholly illusory and complicated procedure and ought not to be considered by any respectable Government.
Having been a lawyer for some 50 years, in both cases—unfair dismissal and employment disputes—there is no doubt in my view that professional advice is imperative. Otherwise, people will pursue claims that ought not to be pursued and eventually it will cost the taxpayer far more than if they were able to pursue the policy envisaged by these amendments.
Lord Faulks
My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.
Baroness Turner of Camden
My Lords, I have spoken on this issue several times in the course of the discussion on the Bill. I support the amendment wholeheartedly. I speak, of course, as a former trade union official. It was my job when working for my union to have charge of the legal aid system that we applied to members. When I saw the provisions in the Bill, I hoped that the unions would begin to impress on their members the necessity of belonging to and having the support of the union when they are faced with this kind of problem.
It is, of course, an enormous problem for the ordinary worker and his family, who depend upon his employment, when they suddenly no longer have it. If the worker has been unfairly dismissed, they need to have access to a way of compensating them for their loss. Unfortunately, the Government also have employment policies in train generally that are designed to make it easier for employers to get rid of workers when they wish to do so.
The arrangements that the Government have in mind, which we have discussed from time to time in this House, are that if the worker wants to get to a tribunal he should have to pay to get there. A fee of £1,000 has been suggested. Furthermore, when a worker gets before a tribunal in future, it will not be a tribunal made up of lay members who have some knowledge of the working practices and industry generally; it will be before a judge sitting alone. In other words, it will be a much more legal system, but there will be no legal assistance to represent the member. All I can suggest to the Government is that perhaps there will be consequences that they had not foreseen. In other words, there will be much more interest in union membership and unions will increase their members—and the Government may not be very pleased about that.
Lord McNally
On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Martin of Springburn
On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.
Lord Bach
The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
Secondly:
“The continued provision of legal aid”—
yes, legal aid—
“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
That seems to me like an employment tribunal. Lastly:
“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally
I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.
Lord Bach
I am much obliged to the Minister. He supported, then:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,
did he? He supported, to repeat:
“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.
Lord Clinton-Davis
Is it not quite usual for the Minister to stand on his head?
Lord Bach
A few months ago I would have said no; now I am not quite sure. I just find it incredible that the Government seem to have taken no notice at all of this wonderful resolution, which was passed unanimously. It is extremely depressing that we find ourselves in a position where people who may have lost their job completely wrongly or suffered other wrongs in their employment are now not able to get that advice because they do not have the resources. The cost to the Exchequer is £4 million a year. Is there nothing else that the Government could have found in order to save employment law as we know it?
It is always tempting to have a vote but, because of matters beyond my or indeed the Minister’s control, we have started this series of important debates at a ridiculous hour, 6.30 pm, and it becomes really stupid to have a vote at this stage. With considerable reluctance, I beg leave to withdraw the amendment.
“(1A) Services provided to an individual at risk of losing their home under sub-paragraph (1) shall include services in relation to the entitlement of the individual to welfare benefits relating to housing costs.”
Lord Best
My Lords, Amendments 76 and 77 are consequential on Amendment 75. Amendment 75 relates to legal aid for work covering welfare benefits advice and casework relating exclusively to the potential loss of a home because of the non-payment of rent or mortgage. The amendment is advocated by Shelter and backed by Citizens Advice, Justice for All, the Law Society, the Law Centres Federation, the Salvation Army, Young Legal Aid Lawyers, the Legal Aid Practitioners Group, the Housing Law Practitioners Association, the Bar Council and the Advice Services Alliance.
The amendment addresses an anomaly in the Bill. Very properly, the Bill leaves legal aid as it is in funding work to defend possession proceedings in the courts, and I commend the Government for prioritising this support. However, the proposal in the Bill is for legal aid funding to be withdrawn for the advice and support surrounding possession proceedings that at present prevents these housing cases from clogging up the courts and leading unnecessarily to homelessness thereafter. I gather that between one-quarter and one-fifth of the time of the solicitors and caseworkers dealing with clients’ potential loss of their homes goes on sorting out the non-payment of rent or mortgage, usually relating to benefit claims. Typically, this means discovering that arrears have built up because of a problem with the administration of housing benefit. Unsurprisingly, in view of the complexity of these arrangements, local authorities can make bureaucratic errors, claims forms can be lost, incorrect payments can be made and so on. At present, legal aid makes possible the service that can often sort out these matters through an expert contacting the officials on behalf of a probably confused or inarticulate tenant. The same goes for claims for support for mortgage interest by homebuyers who lose their jobs but are likely to be unfamiliar with the processes of seeking benefits.
The shift next year from councils administering housing support for tenants to the Department for Work and Pensions doing so is likely, at least for the first year or two, to compound the problem. It is not just that officials new to the task will need to learn the ropes but that the loss of close working relationships between local landlords and local authority benefit teams will take away an important dynamic for sorting out these difficulties.
Shelter’s extensive experience of thousands of cases each year is that the possession claims due to rent arrears can often be headed off at the pass by the Shelter adviser making speedy representations to the housing department that may well have failed to assess a housing benefit claim appropriately. Without legal aid, thousands of cases would certainly have gone to court, using court time and public money, and might still not have been resolved. Worse, without this help many tenants would have lost their homes through no fault of their own.
On other occasions, tenants will leave matters until the last moment and the case will have to go to court. However, an adjournment will often be granted, usually for four weeks. During that time, the legal aid-funded adviser can beaver away, establishing the facts and negotiating as necessary with benefits officials. If in the future the advisers in such cases are not able to handle the support with benefits claims, if they can deal with matters only in the courts and are not free to treat with officialdom on behalf of the client, and if they have to sit on their hands and do nothing for four weeks after an adjournment, people will lose their homes and costs to the taxpayer will rise. The courts will have more adjournment hearings, landlords will not get arrears paid off and justice will not be done.
The chief executive of the South West London Law Centre has explained to me that, in future, to engage the housing benefit officers in a dialogue it will be necessary to issue witness summonses to bring them to court because dealing with them outside court processes will no longer be funded. That would mean costs to benefit officers from having to travel to the court and, no doubt, spend time hanging about, perhaps facing difficulties from not having all the right files with them. It is obviously better for the legal aid-funded expert to deal directly with the official before or during the four weeks of adjournment of a case when so often the problem can be sorted out. If benefits advice relating specifically to possession proceedings is taken out of the scope of legal aid, the funding that remains covered by it—75 per cent to 80 per cent of expenditure—will be much less effective.
In Committee, I argued for the continuation of legal funding to cover many other aspects of housing cases. However, the amendment before us today is much more modest, much more focused and simply retains the scope of legal aid to provide benefits advice and casework where possession is being sought by the landlord or the mortgage company. It seems certain to cost the state a good deal less than removing from the scope of legal aid the funding that pays for the work that prevents and solves problems, and ensures that the rest of legal aid spending and the time of the courts is not wasted when matters could be settled away from the courtroom. It means that the Bill will not unwittingly lead to the injustice of people unnecessarily losing their homes because there was no one there to sort out the problems with their benefits, particularly in the next year or two when the whole housing benefit system will go through such dramatic change.
The amendment represents a very modest change to the Bill but an important and cost-effective one. I hope it is acceptable to the Minister. I beg to move.
Lord Howarth of Newport
My Lords, I fully endorse the amendment proposed by the noble Lord and will add just two points for the consideration of the House that I do not think he touched on. I take it that his amendment would encompass legally aided advice in relation to council tax benefit as well as to housing benefit and support for mortgage interest, which he mentioned. We know that, under the changes that the Government propose, adjudications about council tax benefit will become very contentious. The rules for council tax benefit will be made locally and will vary, perhaps significantly, from one local authority area to another. I wonder whether when he responds to the debate the noble Lord, Lord Best, would comment on that.
My other point is a reflection that I should like to put to the Minister. Having looked at outcomes and data provided by the Legal Services Commission, Citizens Advice has found that legal aid to advise benefit claimants represents a very good investment, certainly where housing is concerned. It has computed that for every £1 invested in advice on housing benefit, some £2.34 is saved for the public purse. Indeed, across a range of benefits—others are outside the scope of the amendment—it has found that the saving to the public purse may add up to as much as £8.80 for every £1 invested. I understand that the Government do not agree with those figures that Citizens Advice has put forward. It would be helpful if the Minister could say something about those calculations. If the Government do not agree with them and he is not ready to refute them in detail this evening, perhaps he will write to those of us who have been actively involved in this Bill to explain on what grounds the Government refute the Citizens Advice calculations.
Lord Beecham
My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:
“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.
He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,
“whilst assisting in defending the possession proceedings themselves”.
Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.
Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.
It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.
The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.
Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:
“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.
It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.
Finally, the Minister observed:
“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]
However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,
“landlords will not agree to delay the possession matter unless they are assured that”
the tenant,
“will be actively assisted in resolving the benefits problem”.
That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.
The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.
Lord McNally
My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.
Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.
Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.
In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.
To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.
On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.
The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.
We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.
Lord Howarth of Newport
Will the noble Lord be kind enough to write to us with a detailed refutation of the specific figures that Citizens Advice has put forward in all good faith and on the basis of careful research? That is important and a lot of people would be interested.
Lord McNally
I will consider that matter, but quite honestly, during the passage not just of this Bill but of every Bill, lobbying organisations produce reports—as the noble Lord says, in all good faith. To answer every one might overburden a relatively small department working on a small budget. I will consider that request.
Lord Best
My Lords, I am grateful to the noble Lord, Lord Howarth, for his support. Certainly council tax benefit is going to cause some administrative headaches in the months and years ahead, and that would be part of the package covered in the amendment, as would support for mortgage interest. However, housing will be the big one, not least—I promise that I will not go into this—the under occupation penalty that is going to be introduced, over which there will be endless wrangles, and there will be arrears for some people, leading, I fear, to possession proceedings.
I am also very grateful for the support of the noble Lord, Lord Beecham, who made the point that mistakes will undoubtedly occur. That is the way of things. Without the opportunity to make representations directly to the administrators, those mistakes will go undetected and people will lose their homes as a result.
I am grateful to the noble Lord, Lord McNally, for clarifying a number of matters and for giving me some important food for thought. He told us that where possession action is contemplated, legal aid might be available to agree, with the landlord, to an adjournment of the case. That is important. However, the amendment is trying to say that there must be the opportunity to spend legal aid funding on the representations that follow with the people administering the housing benefit.
I was glad to be clear that funding will be available to negotiate with the mortgage company where people are in arrears with their mortgage repayments. However, why would it therefore not be available for dealings with the housing benefit administrators, who may be the ones with whom the dialogue needs to be held? An expert needs to talk to the people in question. I fear that leaving people to their own devices will not work.
In terms of evidence, I have received the usual pile of representations from bodies representing other bodies but also from some front-line people. The Nottingham Law Centre sent me a letter last week saying:
“’Day in day out we represent people who are in arrears due to issues with benefits (particularly Housing Benefit)”.
It says:
“What is the point of representing a client facing eviction, identifying issues with benefits (particularly Housing benefit which is extremely complex) securing an adjournment to resolve those issues but being unable to help to resolve them? It will lead to a need for further adjournments thereby clogging up the courts or it will make it harder to persuade landlords to agree to adjourning cases as there will be less likelihood of a successful result”.
This is the kind of evidence that people who are trying to resolve these issues are faced with. I am afraid they are likely to be undermined without an amendment of this kind. However, at this late hour, and with the opportunity to ponder some of the Minister’s helpful remarks, I beg leave to withdraw the amendment.
Lord Avebury
Lord Avebury
My Lords, I shall speak also to Amendments 77B to 77D, and after that my noble friend will probably deal with Amendment 77E, which covers a different matter.
We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.
The main amendment in this grouping—Amendment 77B—would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill’s impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action—for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994—then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.
If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.
Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council’s decision to seek possession in the High Court on the basis of the local authority’s failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?
We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady’s brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed, but at any moment the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.
Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.
I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided—wrongly, in my opinion—to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe’s High Commissioner for Human Rights.
We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.
Baroness Whitaker
My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more about the earlier amendments that the noble Lord, Lord Avebury, spoke to so clearly. Amendment 77E will make a big difference to the security of place for many Gypsies and Travellers. The Bill proposes that all aspects of the Mobile Homes Act 1983, apart from those that concern possession, will go out of scope. The result will be that Gypsies and Travellers living on rented sites will be deprived of legal aid and legal advice of any sort to deal with cases that involve breach of a covenant of quiet enjoyment, succession, resiting of a mobile home, rent increases and repairs. Both the law and the facts relating to these issues can be complex. The consequences of failing to deal properly with them can be serious. They can result in homelessness—even though the intended effect is not to create homelessness—because the tenants are effectively driven out.
The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.
These actions are not technically called “harassment”, but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment—that is to say, Article 8 rights under the Human Rights Act—should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term “harassment”. It would be a small step conceptually, but it would make a big difference.
Baroness Turner of Camden
My Lords, I support these amendments. I do not want to add anything to the very detailed case already made by the noble Lord, Lord Avebury, in introducing the amendment. It seems to me that local authorities have an obligation in law to provide sites for Travellers and their failure to do so is responsible for the need to provide legal assistance to Travellers. Otherwise, Traveller families, which include numbers of children, are rendered homeless, and that, in my view, is quite unacceptable. I hope that the detailed amendments before the House tonight meet a sympathetic response from the Government.
Lord Bach
My Lords, we agree with the amendments in this group. In Committee, the noble Lord, Lord Avebury, said:
“Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom”—
that was the phrase he used—
“whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted”.—[Official Report, 24/1/12; col. 928.]
In his reply, will the Minister explain to the House why the Government took that decision and changed the policy that had been set up under the previous Government?
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.
I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.
Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.
I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.
I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.
It has been argued that our approach in the Bill cuts across case law that permits public law arguments to be raised in possession proceedings themselves, a point made by my noble friend. As we discussed when we met, along with colleagues from the Community Law Partnership, the Government do not necessarily accept that argument. It is correct that case law has developed so as to allow public law arguments to be raised directly in possession proceedings. Our proposals in relation to legal aid do not affect that. However, there is no legal bar on seeking a judicial review of a public authority’s decision to bring possession proceedings.
We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.
It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.
In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.
I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill’s provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.
I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession proceedings to evict them. Therefore, we do not accept the argument that the Bill’s trespass exclusion now targets Gypsies and Travellers in particular.
Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government’s draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.
As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion—a question was raised as to why nothing has actually been paid out yet—but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency’s established programme management framework, with quarterly contract review meetings forming part of the process.
The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.
As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.
The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.
If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.
Lord Avebury
My Lords, I am most grateful to the noble Baronesses, Lady Whitaker and Lady Turner, for their contributions to this debate. I should like to begin by pointing out that the noble and learned Lord did not cover the case of the family camped on the roadside for reasons of absolute desperation. There was nowhere else for them to go. They needed to consult a doctor and stopped temporarily in order to receive medical advice and treatment. That was the sort of case we had in mind when framing these amendments in consultation with the Community Law Partnership. It still seems to me that they should have the right to be able to contest an action for possession on public law grounds and that they should be able to do this in the county court. With respect, my noble and learned friend did not refute the allegation that it would be far more expensive to deal with these cases by way of judicial review in the High Court. All he said was that there would not be very many of them but that does not seem to be a very valid argument against the amendment.
The noble Baroness, Lady Turner, said that local authorities had an obligation to provide sites, which they manifestly have failed to honour. The noble Lord, Lord Bach, was good enough to quote what I said at an earlier stage about the contrast between regional spatial strategies under which definite plans were in hand to grant planning permission for sites. That was scrapped and we were left with the unfettered decisions of the local authorities, which I am afraid will not result in the delivery of the sites. My noble and learned friend mentioned the £47 million allocated by the Homes and Communities Agency to local authorities and social housing agencies to provide some 700 pitches. But the agencies in question have not even begun to identify the land on which this money will be spent, let alone apply for planning permission.
Figures provided by the Irish Traveller Movement in Britain in its survey of local authorities show that the number of sites for which planning permission is intended has plummeted by 50 per cent from the figures that were given in the regional spatial strategy. I consulted Essex County Council to see what was happening there. As noble Lords will recall, there was a high profile eviction case at Dale Farm in Basildon. The figures from the council show that under the regional spatial strategies, the minimum number of pitches that were to be provided by 2021 was 965, whereas the planned Gypsy and Traveller pitches in the individual local authority plans that have so far been developed under the present system total 93. So in the county of Essex the situation is worse even than the ITMB survey revealed. Only 10 per cent of the pitches that were intended under the regional spatial strategy are going to be granted planning permission in these particular local authorities. I hope to provide figures for the rest of the east of England, where the regional spatial strategy was fully developed under the previous Government, to show that the intentions of my noble friends of £47 million to provide pitches are pie in the sky. I will offer them 10 to one against the delivery of 700-odd pitches by 2015 for any level of bet they would like to take.
I am very disappointed that we have not been able to make more headway on this minor amendment, but as with the noble Lord, Lord Bach, on the previous amendment, I am afraid that we have come to it late at night, and I do not propose to press it to a Division. I shall withdraw the amendment with the utmost regret.
Lord McNally
“Terrorism prevention and investigation measures etc39A (1) Civil legal services provided to an individual in relation to a TPIM notice relating to the individual.
(2) Civil legal services provided to an individual in relation to control order proceedings relating to the individual.
Exclusions(3) Sub-paragraphs (1) and (2) are subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions(4) In this paragraph—
“control order proceedings” means proceedings described in paragraph 3(1)(a) to (e) of Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”);
“TPIM notice” means a notice under section 2(1) of the 2011 Act.”
Lord McNally
My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.
Lord Beecham
Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.
Lord McNally
“(a) the exclusions in Parts 2 and 3 of this Schedule, except to the extent that regulations under this paragraph provide otherwise, and(b) any other prescribed exclusions.”
Lord McNally
My Lords, this is a technical amendment to the drafting of paragraph 40 in Part 1 of Schedule 1. I have written to Peers on this matter, but I am willing to go into further detail if noble Lords wish. However, I assure them that this is a technical amendment. I beg to move.
Lord McNally
Lord McNally
Lord McNally
My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.
Lord Beecham
My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.
Lord McNally
No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.
As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.
The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.
I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.
Baroness Hamwee
I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.
Lord McNally
I think that we can all reflect. I will respond to my noble friend after such reflection.
Lord McNally
Lord Beecham
Lord Beecham
My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.
Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.
I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.
Lord McNally
My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.
My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.
Lord Beecham
The noble Lord will expect me to express my disappointment at that conclusion, in my understanding of the change of role from soft cop to hard cop. Of course, in many cases it is certainly true that advice is not necessary, but I have indicated at least three areas in which they might well have been necessary. I have experience of a couple of those in the rare occasions on which I have appeared before a tribunal, and I am sorry that Ministers have not felt able to make the very modest concession that would have ensured that in those rather more difficult cases—and they are the exception—legal advice would be available. It is not simply a question of filling in a form. However, clearly the Government are not disposed to take further action and, in the circumstances, I beg leave to withdraw the amendment.
Lord McNally
(a) those services include the types of advocacy listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise;(b) those services include other types of advocacy to the extent that Part 1 of this Schedule so provides.”
Lord McNally
My Lords, again, this is a technical amendment, of which I sent noble Lords details. It is a minor technical amendment, and the full explanation is contained in my letter. If any noble Lord who has read my letter or read the amendment wants further clarification, I am very happy to give it. However, I assure them that it is a technical amendment to the opening text of Part 3 of Schedule 1, which deals with advocacy. I beg to move.
Lord McNally
Lord Thomas of Gresford
“(c) that it is in the interest of justice generally”
Lord Thomas of Gresford
My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty—what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word “exceptional” is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some exceptional peculiarity. However, that cannot be the meaning of what we see in Clause 9, because an exceptional case determination is defined in subsection (3), which says:
“For the purposes of subsection (2), an exceptional case determination is a determination”,
and then describes what type of determination it is: first,
“that it is necessary to make the services available … because failure to do so would be a breach of … the individual’s Convention rights … or … enforceable EU rights, or”,
secondly,
“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
That is it; that is what exceptional case determination is.
My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.
The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,
“that it is in the interest of justice generally”.
I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.
Lord Avebury
My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister’s letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord, Lord Woolf, say that a sizeable proportion of the Supreme Court’s diet was immigration cases. It will be interesting to hear from my noble and learned friend how the person who starts off as a litigant in person and gets part way up the ladder towards the Supreme Court would be able to gain representation when it became appreciated that the case was one of extreme legal complexity; or is this litigant supposed to go all the way up to the Supreme Court dealing with the case himself?
The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals—representation at which is restricted to the highest level, level 3—removals and deportations, applications outside the rules, and illegal entrants and overstayers.
Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation.
I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals.
My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases.
Baroness Lister of Burtersett
My Lords, I support the amendment, as well as Amendments 93A and 94, particularly in relation to immigration law. I do not claim any expertise whatever in immigration law, but I am concerned by many representations that I have received, particularly as regards children and women who will be affected by denial of exceptional cases support. As the noble Lord, Lord Avebury, has said, and as was emphasised by noble Lords from across the House earlier, this is an extraordinarily complex area of law. It is unrealistic to expect vulnerable immigrants to represent themselves without any legal assistance.
I am particularly concerned about the suggestion that children should turn to their social workers for legal advice and assistance. The noble Lord, Lord Newton of Braintree, gave that idea pretty short shrift earlier. He asked whether social workers would receive training. I do not recall the Minister answering that question, so perhaps the noble and learned Lord can do so in his response. I have been written to by Refugee Youth about this matter. It says:
“Social workers have played an important role in many of our lives, but social workers are not immigration lawyers and are not experts in the immigration process and we have had mixed experiences of social workers”.
Refugee Youth also says:
“We want social workers to do what they are trained for and best at in supporting children, not take on roles that they are not trained or competent for. The Government’s proposal simply stands to increase pressures on social workers, and on their sometimes difficult relationship with the children they support”.
That is a very fair point. The Immigration Law Practitioners’ Association states that, “any inevitable failing” in advice provided,
“can be expected to have serious ramifications for trust and confidence as between child and social worker”.
I taught social workers when I was at Bradford University, and the idea that these students would go out and then act as poor persons’ immigration lawyers is frankly laughable. Social workers are on their knees trying to fulfil their statutory responsibilities and should not become second-rate immigration lawyers.
I am also concerned about the implications for women. Rights of Women has written to me, especially about women who have experienced gender-based violence—other than in certain domestic violence cases that will still be in scope—whose immigration status places them at great risk of harm, and about those who may have been subject to trafficking. I know that the noble and learned Lord has said that he will be looking at this matter again before Third Reading, and I hope that at least that issue will be dealt with. Regardless of the complexity of a case, it will not be covered by exceptional cases funding.
It is therefore unbelievable that the Government can expect two vulnerable groups to navigate this complex area of law without those groups being covered by even the safety net of the exceptional cases scheme. I hope that the Minister will look kindly on these amendments and rethink the Government’s position on this issue. I cannot believe that it will cost very much money to extend exceptional circumstances funding to cover these groups.
Lord Judd
My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.
What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.
Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.
I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.
Baroness Hamwee
My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.
There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.
I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.
We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.
Lord Bach
My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government’s thinking on the structure of Part1 of the Bill.
We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.
We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:
“My second point is that, although ‘the interests of justice’ is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase ‘the interests of justice’”.
In response, the noble and learned Lord said:
“I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm.”
That is the phrase that the noble and learned Lord, Lord Wallace, used. He continued, with his usual careful caution:
“I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about”.—[Official Report, 24/1/12; col. 989.]
This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very well with the debate that we had earlier this evening, in which the Government found few friends around the House as regards their argument. I suspect that there are very few friends in the House at present as regards what the noble and learned Lord may say about Amendment 93A. We back it.
The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client’s vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.
My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government’s intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.
Lord Wallace of Tankerness
My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.
I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.
It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.
I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.
My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.
Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.
The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.
Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.
In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.
Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.
My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.
Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.
Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.
As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.
The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.
I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.
Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.
The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.
The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.
We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.
We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.
I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,
“reasonable costs incurred by any person making a successful funding application under this section”.
Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.
I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.
Baroness Lister of Burtersett
My Lords, on unaccompanied children, I accept the point that social workers will not be expected to provide formal legal advice, but in the other place the Parliamentary Under-Secretary of State for Justice said that they could turn to law centres, pro bono representation or the Refugee Council for such formal legal advice. As I am sure the Minister knows, the Refugee Council and the Law Centres Federation have written to the Parliamentary Under-Secretary of State to say that it is simply impossible for that gap to be filled in that way and to point out that the Refugee Council does not provide that kind of support. Will the Minister take that on board? I still do not know where these children will get that legal advice if they need it.
Lord Wallace of Tankerness
The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.
Lord Thomas of Gresford
My Lords, one of the comforting sayings at the Bar, which I have found over 50 years to be absolutely true, is that when one door shuts another opens. It seems to me that, if he has heard of that saying north of the border, the noble and learned Lord will be aware that he has set out in his reply the basis of innumerable applications for judicial review of the decisions made by the director of legal aid services. It is impossible for there not to be a challenge to the statement made by the noble and learned Lord because almost anything can be brought within the ECHR rules, generally speaking, if you really try. We have heard reference to Articles 2, 6, 7, 8 and 14 tonight, which gives us five articles to play with.
I can assure the noble and learned Lord that the legal profession will look forward to testing his description and the ambit of the clause for a considerable period—case after case. It would be so much simpler if a broad discretion were given to the director of legal aid services, coupled with guidance that we could look at, in order that there would be some ambit to it. If the formulation of the noble and learned Lord, Lord Mackay, which was found to be so seductive last time, were adopted with guidance, that could prevent an awful lot of future litigation. With that very pleasant prospect in mind, I beg leave to withdraw my amendment.
Lord Wallace of Tankerness
My Lords, this is another minor and technical amendment designed to correct a drafting inconsistency between Clause 7 and Clause 10. Clause 10(4) is intended to cover the possibility of a different level of service being appropriate to a matter that falls within the scope of Part 1 of Schedule 1—for example, legal help or legal representation. In Clause 10(4), we currently use the phrase “description of service” when our intention is simply to refer to “forms” of service as we have in Clause 7(2). The amendment simply standardises the terminology between Clause 7 and Clause 10(4). I beg to move.
Lord Beecham
Lord Beecham
My Lords, this is a straightforward amendment that deals with the question of creating a right of appeal to a tribunal or court from a decision by the director. It seems highly undesirable that there is only the possibility in the Bill of regulations being provided to allow for such an appeal, and clearly there ought to be a proper route to appeal. The amendment requires that regulations should be brought into being instead of simply laying down an option for them to be brought forward. I hope that the noble and learned Lord will accept that it is desirable to have that avenue prescribed and subject to regulations from the outset rather than leaving it open. I beg to move.
Lord Wallace of Tankerness
My Lords, as the noble Lord, Lord Beecham, has indicated, the amendment would require regulations to be made under Clause 11 to make provision for appeals to a court, tribunal or other person against determinations made by the director under Clauses 8 and 9, and against the withdrawal of such determinations. I can reassure the House that the Government’s intention is to continue with the existing effective appeal procedures that are currently used by the LSC. First, an internal review on all determinations on civil legal aid will be available. This is required by Clause 11(5). Secondly, we are retaining the current system of independent lawyers, known as independent funding adjudicators, who volunteer to carry out independent reviews of funding decisions in in-scope civil and family representation cases. Clause 11 already allows us to make regulations to set out those appeal processes in secondary legislation, as they are set out currently.
The existing system, which deals with over 11,000 reviews and 3,500 appeals to independent funding adjudicators each year, is both efficient and effective and costs an estimated £60,000 per year to administer. I am not sure that he did, but it may be that the noble Lord envisions instead a tribunal to review these appeals. The review by Sir Ian Magee initiated by the previous Administration into the governance of legal aid looked at the option of directing all legal aid appeals to a tribunal and concluded that this would cost up to £1 million per year to administer. We do not believe it would be sensible to replace a system that works well with an unknown system at possibly 15 times the current cost.
This amendment would also require an appeal in cases covered by Clause 9. Again, we intend to retain the existing system under which, although there will be an internal review available in accordance with Clause 11(5), there will be no appeal to an independent funding adjudicator where applicants remain dissatisfied. I do not agree that these cases should attract a right of appeal to an IFA. It would not be appropriate to refer exceptional funding decisions to an IFA. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be amenable to judicial review. I think my noble friend Lord Thomas of Gresford confirmed that in his response to an earlier debate. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, if there is no intention at any stage to provide for appeals to a court, tribunal or other person against such determinations, why is the option included in the first place? Either the Government intend at some point for some categories of case to be dealt with in that way or they do not. If they do, they should make regulations. If they do not, subsection (6) is otiose. However, I am making no progress with the noble and learned Lord, and at this hour I do not propose to take the matter further. I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
“Report reviewing claims for clinical negligence
(1) In discharging his or her functions under section 1(4) above, the Lord Chancellor shall have regard to the provisions of this section.
(2) The Lord Chancellor may appoint an independent person to review claims for clinical negligence and means of improving the modes, procedures, financing and outcomes relating to the same as he or she shall specify.
(3) Such a review may in particular address the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of such claims.
(4) After the reviewer must compile a report of his or her conclusions.
(5) As part of those conclusions the reviewer may propose such scheme or schemes (voluntary or otherwise) as he or she shall see fit.
(6) In this section “claims” shall mean claims and complaints made by patients receiving services provided or commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, or of a primary care or independent provider.
(7) The Lord Chancellor must lay before Parliament a copy of a report compiled under subsection (4).”
Lord Phillips of Sudbury
My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.
The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.
The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:
“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—
that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—
“it remained for clinical negligence—in recognition of its especial challenges”.
That is absolutely the point.
I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.
I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.
This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.
That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.
Lord Wallace of Tankerness
My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.
The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.
I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.
Lord Phillips of Sudbury
My Lords, to say that I am disappointed in that response is, I am afraid, an inadequate estimate. The whole point of amending the resolution from last time was to make this discretionary. For the Government to say that they do not even want to be under an expectation of having such a wide review seems wayward. I also find it wayward that the amendment is rejected on grounds of cost. It is to save massive waste in this area that this amendment is put forward. I will withdraw the amendment, as there are only a dozen of us here, but I do so with disappointment.
Lord Bach
I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally
My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—
Lord McNally
I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—
Lord Beecham
Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?
Lord McNally
I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.
However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.
Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.
I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.
I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.
Lord Bach
My Lords, given the time of night, I will obviously withdraw the amendment. I thank the Minister for his response but I cannot say that I am totally satisfied. My ears started to prick up when he said that in general it was considered that it would be in the interests of justice. My question to the Government is: when will it not be in the interests of justice for someone in custody at a police station or other premises to have initial advice or assistance? Are there any examples? I do not ask the noble Lord to answer now but it would help the House if he could write with some examples of the kind of situation in which it would not be in the interests of justice for someone in custody to receive this assistance and advice. It is the fact that there may be occasions when it is not considered by the director to be in the interests of justice that worries me. I would be grateful if the noble Lord could find the time to write to me with some examples. I think other Members of the House would be grateful for them as well.
Lord McNally
My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.
Lord McNally
Lord Thomas of Gresford
“( ) For the purposes of subsection (1), “financial resources” shall include all the realisable property of the individual subject to a restraint order under section 41 of the Proceeds of Crime Act 2002 (restraint orders).
( ) The Proceeds of Crime Act 2002 is amended as follows.
( ) In section 41, omit subsections (4) and (5) and substitute—
“(4)(a) A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court, whether or not they relate to an offence mentioned in Section 40(2) or (3), subject to conditions—(i) an application for the release of such expenses shall be made by the alleged offender to the Court where the offence for which they are required is to be tried,(ii) notice shall be given of the application to the prosecutor or the Director, (iii) the application shall be supported by a costs budget verified by the solicitor to the alleged offender,(iv) the budget shall be calculated on the basis of current legal aid rates,(b) The Court shall not make an order prejudicial to a co-defendant.(5) The Court shall supervise the course of an order made under subsection (4) above and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender.””
Lord Thomas of Gresford
My Lords, Amendment 105A is in substitution for Amendment 105, which was drafted in identical terms to the amendment that I moved in Committee. As your Lordships will recall, my concern is that a person who has had his assets frozen should have those assets counted as financial resources when his application for legal aid is considered. At this time of night I do not think that a large exposition of that concept is needed, but I point to the differences between this amendment and the amendment moved in Committee. It was suggested by the Minister that you cannot easily unfreeze the assets of a person who is a criminal. I decided that I would do my best to show how simply it could be done by including in the Bill the conditions that could be applied. Amendment 105A states:
“A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court”—
I am not referring to the magistrates’ court—whether or not they relate to the offence for which the person has been arrested, subject to certain conditions. Those conditions are an application to be made to the court,
“where the offence for which they are required is to be tried”.
Further,
“notice shall be given of the application to the prosecutor or the Director”—
of Public Prosecutions—
“the application shall be supported by a costs budget verified by the solicitor to the alleged offender”.
Further,
“the budget shall be calculated on the basis of current legal aid rates”.
We are not suggesting that frozen assets should be released so that a locked-up defendant’s lawyer can drive around in a Rolls-Royce. He should receive remuneration as if it was a legal aid case but it would not come out of public funds—it would come out of the restrained assets. If such an order were made, it is very important that it should not be prejudicial to a co-defendant. One would not wish to see a defendant gaining an advantage by employing the leading Silk in the field of fraud in which he may have been engaged whereas his co-defendant was not able to do so.
Finally, the amendment states:
“The court shall supervise the course of an order … and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender”.
It seems to me that this is a straightforward, simple code that could be introduced to permit the frozen assets of an alleged offender to be unfrozen for the purposes of his defence. I hope that the Government will accept this or something like it. I beg to move.
Lord Bach
My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.
Lord McNally
I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.
Lord McNally
Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.
Lord Bach
Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.
Lord McNally
Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.
The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.
My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am very grateful to my noble friend for saying that, and I am pleased that there are investigations. That is nothing to do with me but perhaps more to do with a person who was named in the Evening Standard the week before last as having received £5 million in legal aid. When one considers the sort of concessions that we and certainly the Opposition have been looking for for civil legal aid, providing £5 million to one person in a criminal case, when he is living in his wife’s seven-bedroom Mayfair mansion, surely stimulates the Ministry of Justice far more than anything that I might say. I look forward to the work that the noble Lord referred to and, for the moment, I beg leave to withdraw the amendment.
Lord McNally
Lord McNally
My Lords, it takes a certain amount of, as the noble Lord, Lord Beecham, said, chutzpah—although I do not know whether that word is allowed in Hansard—to ask the House at any time to accept a grouping of 14 government amendments, but I can absolutely assure the House that I have written to noble Lords and that these are technical amendments. I recommend them to the House. I beg to move.
Lord McNally
Lord Thomas of Gresford
Lord Thomas of Gresford
My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.
So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.
The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.
The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.
Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.
Lord Beecham
My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.
Lord McNally
Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.
Lord Beecham
My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.
Lord McNally
Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?
Lord Bach
Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.
Lord McNally
Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.
As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.
Lord Thomas of Gresford
It is negative in the Bill. My amendment would make it affirmative.
Lord Thomas of Gresford
That was a quick decision, if I may respectfully say so.
Lord McNally
The noble Lord did say that we were allowed to change our mind.
The power at subsection (3) is not new. Section 10(2)(c) of the Access to Justice Act 1999 explicitly allows for regulations to provide that a legally aided person can make a payment exceeding the cost of the services received. When we consulted on the legal aid reforms, we specifically consulted on introducing such a supplementary legal aid scheme.
As well as creating an additional source of funding for civil legal aid, the supplementary legal aid scheme will address the interrelationship between legal aid and the proposed reforms to the costs of civil litigation put forward by Lord Justice Jackson, which are reflected in Part 2 of the Bill. We want to ensure that as far possible the recovery level of damages by the supplementary legal aid scheme complements the Jackson reforms so that conditional fee agreements are no less attractive than legal aid. The recovery level of 25 per cent of all damages, other than those for future care and loss, is therefore based on the success fee cap for a conditional fee agreement in a personal injury case.
Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages, such as damages for pain and suffering and loss of amenity in tort cases. This will help claimants to pay their conditional fee agreement success fee or a 25 per cent portion of the relevant damages, if legally aided.
There has been a suggestion that it is unfair for successful claimants to be asked to help to underwrite the cost of the legal aid scheme in the way proposed. We do not see it as unfair. A claimant who wishes to proceed in a civil action with the aid of public funding is asking the taxpayer to take a risk on his or her behalf. Where that risk bears fruit in the form of what may be a very substantial sum of money, it is perfectly reasonable for a share of that to go back into the public pot so that the continued taking of such risks can more easily be sustained.
In sum, the power to make a supplementary legal aid scheme has now been sought by successive Governments. It has previously been approved by Parliament. Financial constraints are now such that we believe that it would be wrong not to exercise it in the way that we have clearly proposed and consulted on. Omitting to do so would also be out of step with the wider reforms to civil litigation that we are making. In light of my explanation, I hope that the noble Lord will agree to withdraw the amendment.
I now turn to Amendment 130, which would make any regulations made under Clause 22 subject to the affirmative resolution procedure, necessitating a debate and approval of a resolution by both Houses before the regulations could be made. We believe that this amendment is specifically related to Clause 22(3), although it goes much wider. As I have explained, we intend to use the power in Clause 22(3) to make regulations to establish a supplementary legal aid scheme. We believe that this amendment is aimed at ensuring that the details of the supplementary legal aid scheme are subject to the affirmative resolution procedure. An equivalent regulation-making power is contained at Section 10(2)(c) of the Access to Justice Act 1999. That power is subject to the negative resolution procedure. Our starting point is therefore, why should that change?
I am aware that there has been some suggestion that the Government have not been sufficiently clear about their intentions with regard to the use to which they intend to put the power in Clause 22(3). Nothing could be further from the truth. The proposal to introduce a supplementary legal aid scheme was clearly stated in the,
“Summary of the legal aid reform programme”,
contained in Reform of Legal Aid in England and Wales: The Government Response. That paper also contained a five-page annex explaining the proposal in the light of the response to the preceding consultation.
Paragraph 168 of the Explanatory Notes to the Bill also made our intended use of the Clause 22(3) power perfectly clear. Both Houses have now had an opportunity to debate the clause in the light of explanations that we have given. Clause 22(3) was specifically debated both in Committee in the other place and in Committee in your Lordships’ House. We believe that all that, combined with the negative resolution procedure in respect of the regulations, allows adequate public and parliamentary scrutiny in relation to the supplementary legal aid scheme.
The Delegated Powers Committee of the House considered the delegated powers of this Bill and did not comment on the application of the negative resolution procedure in relation to Clause 22(3). The Government’s memorandum to the committee explicitly highlighted our intended use of Clause 22(3). This amendment is therefore unnecessary.
I should also point out that the amendment goes much wider than just Clause 22(3) and would require the affirmative resolution procedure for any regulations under Clause 22. That would be undesirable and disproportionate. The powers under Clause 22 are those that will be used to set out the detailed rules regarding payment of contributions and case costs in respect of both criminal and civil legal aid. The negative resolution procedure is clearly the most appropriate for the type of highly detailed and technical provisions envisaged here, which will require variation from time to time. In those circumstances, I invite my noble friend to withdraw his amendment. I regret the confusion in my note reading halfway through that explanation.
Lord Thomas of Gresford
I think it was Champerty rather than maintenance where a third party takes a chunk of the damages that a litigant obtains in court. It is curious how far we have come to defeat these very ancient principles of English law. You can see the Magna Carta barons around the Chamber looking down on us; you can see them trembling as they listen to my noble friend putting forward this proposition. It is true that it was in the Access to Justice Act, but I do not believe that it was ever brought into force. It is also true that it was mentioned in the consultation document, which I read. In a document of some 150 pages, it covered one-third of a page; one paragraph related to it. It certainly was not highlighted either in the House of Commons or in this House that there should be such a deduction from the damages that are obtained by a legally aided person. I regret that.
A supplementary legal aid scheme could have been an alternative to support for conditional fee agreements—an argument that was made a long time ago—and it is true that a supplementary legal aid scheme has been adopted successfully in Hong Kong for people who do not qualify for legal aid. However, to have it in addition to the other provisions of the Bill is regrettable. For the moment—well, for all time—I beg leave to withdraw the amendment.
Lord McNally
“( ) provision modifying the charge for the purposes of its application in prescribed cases or circumstances,”
Lord McNally
Lord McNally
“(6A) Regulations may provide that an individual is to be treated, for the purposes of subsection (1) or regulations under subsection (3) or (5), as having or not having financial resources of a prescribed description (but such regulations have effect subject to subsection (4)).
(6B) Regulations under subsection (6A) may, in particular, provide that the individual is to be treated as having prescribed financial resources of a person of a prescribed description.”
Lord McNally
My Lords, for the last time I make a solemn promise to the House that I covered the amendment in a letter that is lodged in the Library of the House, and that it is a technical amendment. I beg to move.