Children and Families Bill

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 17th December 2013 Lords Chamber

[Lord McNally]

I hope that the noble Baroness takes what she has said to heart; what I am trying to avoid is replacing one perception with another. There is equal danger that, after a debate such as this, another perception gets flagged. What I want is to emphasise what is in the legislation and what is intended by the legislation and to use all the means at our disposal to make sure that that is fully understood by all the agencies involved and the widest range of public opinion as possible. As my noble friend has indicated, that also means that there is a certain sense of responsibility on the part of the media in reporting the intentions of Parliament.

When a case is before the court, neither parent has a right to any specific level of contact, direct or otherwise. The court must consider the child’s welfare above all else and make its decision on that basis, weighing up the evidence before it. That will continue to be the case, and nothing in Clause 11 changes that. The wording of the clause is deliberately neutral; it does not seek to pre-empt court decisions and, as now, it gives courts the flexibility to determine the arrangements that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach.

However, I agree wholeheartedly with those who have highlighted the need for a clear understanding of the policy. The reality is that any provision which impacts on parents and their private family relationships is extremely sensitive. Even the wording of the amendment could be misinterpreted in the media and give rise to unintended consequences. There is no guarantee that it would not. For example, as I said, a parent who already has very limited contact through no fault of their own may interpret the wording as endorsing that position. Our priority must be to draft legislation which achieves our intended effect and to take other steps to communicate to society more widely what that effect is. As I said, it is unlikely that separating couples will look to the Children Act 1989 to try to predict the outcome of their dispute. They will look for information online or talk to their friends and family, to organisations which they trust or their legal advisers.

The Government’s “Sorting out Separation” web app will be the first port of call for many parents looking for information about any aspect of separation and it will then signpost them to further sources of help. The app itself will set out clear information for parents about the law, and this information will make it plain that the change is not intended to be about the division of the child’s time. We will also ensure that organisations with the Help and Support for Separated Families kitemark have clear and accurate information about the changes. The web app will be embedded on the sites of organisations that have this kitemark, including, for example, Relate. This means that people accessing these websites will be able to click on a link and access information on the web app. In addition, the minority of separating parents who turn to the courts will need, first, to have attended a MIAM, and they will be encouraged to find a different way of resolving their dispute. Parents will be given information through all these routes and through other services that they may engage with.

The way to ensure an accurate understanding of the policy is for the Government to work with organisations in the sector to develop clear information which can be disseminated through these routes, not to reword the clause in an attempt to prevent inaccurate reporting of what we want to achieve. Officials have already begun discussions about the information to be developed and these will continue. We want to work with relevant voluntary organisations so that we are confident that we can address the concerns.

Right from the beginning I have never been in any doubt about the intentions of the various—in this case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am asking for the House’s support this afternoon for the Government’s position. I have thought long and hard about how we can address the problems of misperception and misrepresentation, and I honestly believe that the solution put forward by the noble and learned Baroness, Lady Butler-Sloss, may lead us into the same problems but via a different route. We have tried very hard to get the balance right and, even at this late stage, I ask her to withdraw her amendment.

[Baroness Butler-Sloss]

I thank all noble Baronesses for their contributions and I hope that the Minister will forgive me for not thanking him. I am particularly grateful to my noble friend Lady Howarth, who has put right the perception that in some way the courts are unfair to fathers. It is a perception which has, from the beginning, been inaccurate. When I was President of the Family Division, I went round the courts and made a lot of inquiries. After I had retired, I was very grateful for the CAFCASS report, which absolutely clarified what I had understood to be the case from judges right across the country—that they try cases fairly and that there is no prejudice against fathers.

I find it difficult to understand why the Minister thinks that what I think is a very modest amendment for clarification is going to be widely misinterpreted and somehow bring back the situation before Clause 11 was put forward. I take issue with him on one point. He talks about going to legal advisers. How many people in this country have the money to go to legal advisers if they do not have legal aid? It is this Government who have taken legal aid away from private law cases. When he talks about going to legal advisers, it will be a very small minority of that very small minority who actually fight cases who will get to lawyers at all. They may or may not go on the web and they may or may not read what I consider to be the excellent advice that the Government give. They will look at what the press has said and, despite the wonderfully impassioned suggestion of the noble Baroness, Lady Walmsley, may or may not choose to take any interest in this particular debate, and may perpetuate a very dangerous perception.

I must say that I worry about ordinary people on the ground who cannot get on and decide to separate. I sometimes used to say to warring parents, “You are the last people who should be making decisions about your own children because you cannot think straight about what is happening next”. Those are people—without legal advice, lawyers in court or probably ever going to court—where one of them will be dominating the other and the arrangements for the children will be unsatisfactory and, in some cases, positively dangerous. All I am asking for is some clarification, particularly for a mother because there may well be a more dominant father, although there can be a dominant mother. I have certainly seen dominant mothers and not only in the American press. It is possible that the mother or father who is not the dominant parent will look at the law and see that there is an explanation of what is in Clause 11 with this amendment.

I am truly sad that the Minister thinks that that will create some misinterpretation. Speaking for myself, I cannot see it and I rather hope that noble Lords will not see it either. I would like to test the opinion of the House.

Children and Families Bill

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 23rd October 2013 Grand Committee

[Baroness Butler-Sloss]

My Lords, with the leave of the Committee, I shall speak in place of the noble and learned Lord, Lord Mackay of Clashfern, at his specific request. He was here on Monday, but he was just not reached and is unable to be here today. The noble and learned Lord is making a plea for the Family Law Act 1996. As Lord Chancellor then, he was responsible for its introduction in the House of Lords. A considerable part of that Act has not been commenced, but Governments since then have left it on the statute book.

Clause 18 of the present Bill repeals the whole of that which remains of the 1996 Act. The noble and learned Lord has said that since he was involved he felt diffident about raising the issue, but then he learnt that at least some of those concerned with family law did not know that the Act was to be repealed. He felt that he had a responsibility towards those who had supported him to point to this development. Perhaps the Committee will forgive me if I read the noble and learned Lord’s principal concern. He has written that,

“with no-fault divorce which I advanced on the basis that to require a spouse seeking divorce to make allegations about the other spouse which would not require to be proved was not conducive to the vital task of promoting good relations between them for the sake of the children”.

In other words, “no-fault divorce” means that the parties do not rake up unpleasant things about each other which can only be bad for the children. He adds:

“So far as I know its retention on the statute book has done no harm”.

I would add that Part 1 of the Family Law Act 1996 sets out what I do not believe we get anywhere else; that is, the principles of Parts 2 and 3 of that Act. It states that,

“the institution of marriage is to be supported … that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”—

which is admirable—

“that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with minimum distress to the parties and to the children affected”.

It goes on like that. It sets out in about one page the general principles of good behaviour between parties to a marriage that has broken down. It is sad that there are issues of reflection and consideration before the divorce.

One might say that all that is old hat. Marriages go on, thank goodness. The majority of people who live together do not get married but a lot do. To have these good principles on the statute book has done no harm and will do no harm. It will at least make available to people the desirable end to those marriages that have broken down, and make some effort to remind them that they should try to minimise distress to everyone, particularly their children. I might add grandparents to that. It is sad that it is apparently necessary, under Clause 18, for this Act to be repealed, which is the purpose behind the noble and learned Lord, Lord Mackay of Clashfern, opposing that it should stand part of the Bill.

[Lord McNally]

My Lords, one of the perils of being a Minister in this House is that the continuity that is one of its merits means that changes to decades-old legislation may mean that we find the author still with us, alive and kicking. We saw something similar on Monday when noble and learned Lords wanted a rematch of decisions made by Law Lords some decades ago. However, that does not mean I take lightly the point made by the noble and learned Lord, Lord Mackay. After our Monday sitting, I had a long conversation with Sir James Munby on Tuesday. I mentioned the point raised by the noble and learned Lord. Sir James was somewhat wistful about the ambitions of the noble and learned Lord to bring in the concept of “no-fault divorce”, which had not progressed as much as the authors of the Bill at that time had intended.

I have listened with great care to the points made on behalf of the noble and learned Lord, Lord Mackay, by the noble and learned Baroness, Lady Butler-Sloss. As I have said, I have the utmost respect for the position of supporting the principle of “no-fault divorce”. I acknowledge the expertise of the noble and learned Lord in this area and I know that when he introduced the Family Law Bill in this House in 1995, it was a Bill very close to his heart.

I fully understand that the provisions of Part 2 were intended to save saveable marriages and reduce distress and conflict when it was inevitable that a marriage would need to be brought to an end. While Part 2 retained as the ground for divorce the irretrievable breakdown of the marriage, it would, if implemented, have removed the need to establish irretrievable breakdown through one or more facts. I understand why proponents of no-fault divorce believe that the approach in Part 2 would have helped to reduce conflict and acrimony.

However, there are two separate issues here. The first concerns the principle of no-fault divorce in Part 2, and the second concerns the information meeting and other provisions of Part 2 which were an integral part of that policy. The Government in 2001 concluded that the provisions were unworkable, would not achieve the objectives of saving saveable marriages and reducing distress and conflict, and should be repealed. It is that second issue that led us to include Clause 18 in the Bill.

The decision to repeal Part 2 was made in principle long ago on the basis of extensive academic research by the University of Newcastle. The research looked at six models of information meeting that a party to a marriage would have been required to attend as the key first step in initiating a divorce. Part 2 is built around that initial mandatory information meeting. The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce. While people valued the provision of information, the meetings were too inflexible, providing general information about both marriage-saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the majority of cases, only the person petitioning for divorce attended the meeting. Marriage counselling and conciliatory divorce all depend on the willing involvement of both parties.

Repeal of Part 2 has been awaiting a suitable legislative opportunity. The Children and Families Bill now provides that opportunity. Repeal was part of the draft Bill published for pre-legislative scrutiny in September 2012. None of the written responses opposed repeal of Part 2.

The Government have introduced separate measures in Clause 10 to make it compulsory for an applicant in certain family proceedings first to attend a family mediation, information and assessment meeting—I realise we will be having further debates about that on Report. That provision has some similarities with the information meeting provision for divorce in Part 2 and will, we intend, address disputes about children and finances.

Mediators who conduct the MIAM will check with the parties whether they wish to save their relationship, as well as discuss ways to resolve a relevant family dispute with the minimum of distress, including, in particular, arrangements for any children. However, Clause 10 addresses disputes between both cohabiting and divorcing couples.

Repeal of Part 2 is a long-standing commitment to Parliament. There is no prospect of Part 2 being implemented. Therefore Clause 18 should stand part of the Bill.

[Baroness Butler-Sloss]

My Lords, the noble and learned Lord, Lord Mackay of Clashfern, wanted this matter raised, but he does not wish it to be pursued any further.

Children and Families Bill

Debate between Baroness Butler-Sloss and Lord McNally

Monday 21st October 2013 Grand Committee

[Baroness Butler-Sloss]

My Lords, I entirely support what lies behind what the noble Baroness, Lady Jones, has said. Amendments 58 and 59 may go most of the way. Amendment 60, to which I speak, was proposed by the Bar, which is why I have put it forward. It is important that the Government understand that there are difficulties. The Child Abduction and Custody Act 1985 incorporates the Hague convention of 1980. I have spent a great amount of time as a High Court judge and in the Court of Appeal on the Hague convention. Under Article 5,

“‘rights of custody’ shall include rights relating to the care of … the child and, in particular, the right to determine the child’s place of residence”.

I congratulate the Government on their bravery as regards arrangements. Having tried cases with mothers and fathers, I do not believe that the proposal will work any better than custody and access or residence and contact. It is not the words but what happens to the child who gets one or other parent, or sometimes both parents, absolutely up in arms.

The difficulty is that the decision under the Hague convention is not made in England if an English child has been abducted. There has been a particular decision, with which I will not bore the House, except to say that where the applicant’s right of custody is an issue the question should not be determined by the English court unless it is unavoidable. It is a matter for the court where the child is taken to, where the other parent goes to that court through the arrangements in this country and says that this parent has lost the child because the child, in respect of which he or she has a right of custody, has been removed from this jurisdiction. The court of the jurisdiction where the child is found makes the decision on whether the right of custody has been breached.

As the noble Baroness, Lady Jones, has said, these are complicated cases. It is very often difficult in some countries to get that country to accept that nationals of that country were resident in this country. Therefore, while they may have been in Germany, they may not particularly want to send their children back although they had been resident here. Guatemala is a country that I particularly have in mind. Under the Hague convention, they should come back but if there is some uneasiness about what is meant by “arrangements”, it is a marvellous opportunity for the foreign court to say, “We are not satisfied on rights of custody, so we will keep the child here”. That is exactly what the amendments of the noble Baroness, Lady Jones, and my amendments are intended to deal with.

I do not mind whether the amendment drafted for me by the Bar or any other amendment is preferable. I would like to see an interpretation of the words “rights of custody”. It should be stated that arrangements made in respect of either parent equal—but put, obviously, in more legalistic language—a right of custody. I hope that the Government will accept that both the noble Baroness and I have got a really important, highly technical point that may have an adverse, practical effect on English and Welsh children being taken unlawfully out of the jurisdiction.

[Lord McNally]

If there is anything likely to chill the marrow of a non-lawyer Minister, it is the noble and learned Baroness, Lady Butler-Sloss, saying that the amendment that she is proposing is highly technical and important. I have no doubt about that and will try to deal with it with due thoroughness, well aware that the noble and learned Baroness is far more well read in the Hague convention than me.

I am advised that the Hague convention gives a wide interpretation. It is intended to predict all the ways in which custody of a child can be exercised. It is not just orders concerning residence that count; it is also rights arising from the operation of law and agreements between parents which have legal effect under our law. The child arrangements order will make it clear that other jurisdictions will consider where a child lives and has contact as evidence in determining whether an individual has rights of custody.

I welcome the support expressed by the noble Baroness, Lady Jones, for the government amendment, which is purely consequential. Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a reference to contact and residence orders. The amendment simply updates that to refer instead to child arrangements orders.

The remaining amendments relate to the recognition of the child arrangements order at international level. I agree with noble Lords that we must ensure that the order is recognised and enforced at international level in the same way as existing contact and residence orders. I welcome the thought which has been given to this issue.

The introduction of the child arrangements order stems from a recommendation of the family justice review. It seeks to move away from language which reinforces the perception that one parent is more important than the other. In terms of content, the court will, as now, be able to set out clearly in an order the person or persons with whom a child lives, spends time or has other types of contact, and when.

While the amendments which have been tabled do not change the scope of the child arrangements order, Amendment 58 would increases the focus on its distinct elements. In doing so, it risks undermining one of the key aims of the order, which is to shift the focus away from parents’ perceived rights on to the rights and needs of the child.

Amendments 59 and 60 relate more explicitly to the recognition of the order under the 1980 Hague convention. “Rights of custody” are a key concept under the convention and include rights relating to the care of a child, in particular the right to determine a child’s place of residence.

In considering whether there has been an unlawful removal for the purposes of the convention, a court will first establish what rights the applicant had under the domestic law of the state in which the child was habitually resident. What matters is what rights are recognised by that law, not how those rights are characterised.

The specific content of relevant decisions and orders, such as child arrangements orders that specify with whom a child is to live, will provide evidence as to the rights that a person has in respect of a child. However, the question as to whether those rights are properly characterised as “rights of custody” is a matter of international law. The phrase “rights of custody” is not confined to any national meaning, and it would not be appropriate to try to dictate the meaning of an international concept such as this in our law. I assure the Committee that we will be making full use of existing international groups and channels to raise awareness of the new order and ensure that it is properly understood. For that reason, I urge noble Lords to accept the Government’s amendment.

I say again that what I say here is not plucked out of the air; it is the result of considerable thought and advice from government lawyers and is on the basis of advice from the Norgrove studies. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, suggested that we might possibly be causing confusion by what we are doing. I suggest that we meet between now and Report—I am getting a long list of engagements now, but it is important to get this right—and discuss this. If the Government’s expert lawyers persuade me that noble Lords are wrong, then on Report I shall try to persuade the House that they are wrong. However, if noble Lords convince them that there is confusion here, that is the last thing that the Government want out of this legislation. In that spirit, I hope that the noble Baroness will agree to withdraw her amendment.

[Baroness Butler-Sloss]

I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

Children and Families Bill

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 16th October 2013 Grand Committee

[Lord McNally]

My approach to this Committee is that I genuinely do listen and take back its findings not only to my expert advisers but to other experts in this field who are not members of this Committee but will read its proceedings. If people on either side of the argument want to write to me and relate their experiences, we may be able to make a definitive decision on this issue at a later stage. I will certainly not go to the wall over the name that is used; I want an effective process.

[Baroness Butler-Sloss]

My Lords, I say to the Minister that I am perfectly prepared to be wrong; I often am. However, I think that on this occasion I am probably right and I shall be very interested to see the research. I would very much like a copy of the draft rules. I used to be the chairman of the Family Procedure Rule Committee. I have to confess that I tried not to attend that committee if I could avoid it as it is quite the most boring committee I have ever sat on. However, I should like to see the draft rules and would be most grateful if they could be provided.

The noble Lord knows that it is the practice in the Moses Room to withdraw the amendment and I will, of course, do so, but before I do so I should like to make one or two points. I am extremely indebted to the noble Viscount, Lord Eccles, for making the point that the title should be neutral. That was what I was searching for, although I did not use that word. The neutral title could be “family information meetings” or, as has been sensibly suggested by the noble Baroness, Lady Hamwee, “family meetings”. Family information meetings might be slightly better as people would know that that was what they were going to get.

I am entirely supportive of mediation in the right cases, and in all but 5% of cases it will be right, if they ever go to court at all, which most of them do not. Where neither party is legally aided, they will both battle through the real difficulties of making their applications and so on in the county court or magistrates’ court and try to cope with something which is completely unfamiliar to them. Therefore, the information meeting, and a requirement to have one, seem to me entirely admirable.

The only problem is that there are in a sense two stages to this because mediation is different from information and assessment. It imposes upon people a requirement to try to settle. You cannot have compulsory mediation. You can have compulsory information and assessment, but you cannot require people to settle. That is something I was taught as a young barrister and I have learnt all the way through my legal and judicial career that people cannot be made to settle. The purpose of mediation is to get them to settle or to try to tackle the issue in a better way, but that could be achieved through the provision of information and an assessment. One has to understand that mediation is in a different class from information and assessment.

I throw out my next point as a possibility for the Family Procedure Rule Committee and the Minister’s experts to look at. I am not suggesting that this is necessarily a good idea but I throw it out for consideration. I would be content if the forms that the parties receive put the words “information”, “assessment” and “mediation” in brackets. Parties could cross out the word “mediation” to show that they are prepared to opt for information and assessment but are not prepared to go through a process of trying to make them settle. That might just do the trick if you want to keep the word “mediation”.

However, I am very concerned about the small number of people who are most likely to go to court. You do not go to court if you can reach agreement. Some 90% do not go to court or go to court only to obtain an agreed order, 5% can be persuaded to go through mediation, and probably mediation is just what they need, but 5% cannot. What could happen if there is a requirement for mediation is that particularly the man, although sometimes the woman, will get to the meeting with the trained mediator and the minute the mediator starts to say, “Well, could you not agree to this?”, he will storm out and not listen to what he needs to understand as to how the court proceedings will go. That is my real worry. However, for the moment, I beg leave to withdraw the amendment.

Justice: Legal Advice

Debate between Baroness Butler-Sloss and Lord McNally

Monday 11th March 2013 Lords Chamber

[Lord McNally]

He continually talks about what is going to happen. As my noble friend has just said, let us see what happens. As I indicated, we are making a number of changes. Of course I understand that there are difficulties for organisations such as Shelter and the CAB. We have tried to give assistance in those adjustments. It is extremely difficult to give precise responses to predictions of catastrophes that may or may not happen. I can say to my noble friend that we will keep these matters under review. As noble Lords on those Benches will remember, on their instructions we inserted into LASPO a clause that allows review of the impact of the changes that we have made.

[Baroness Butler-Sloss]

My Lords, I will not ask the Minister about legal aid, but is he aware of the increased importance of law centres and citizens advice bureaux advising unrepresented litigants, of which there will be an enormously increased number come April? What are the Government going to do to help them advise unrepresented litigants?

[Lord McNally]

Yes, my Lords, I am aware of that, but one of the points I have made continually through this is that the CAB and the law centres will have to adjust to a situation where the amount they have at their disposal is a lot less, just as my department and local authorities have had to do. That is a fact of life. As I have said on a number of occasions, we are a lot poorer than we thought we were four years ago. Citizens Advice has been extremely successful in lobbying and, as I have indicated, we have made more funds available. For example, my right honourable friend the Lord Chancellor has announced today that we will be giving further aid to the CAB at the Royal Courts of Justice to help with the particular work it is doing in this area.

Legal Services Commission

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 29th January 2013 Lords Chamber

[Lord McNally]

My Lords, I am always fascinated by the way in which the noble Lord dismisses £650,000 as a mere bagatelle, but let us also look at the facts. This scheme for funding such bodies was introduced in 2000 and the three bodies in this consultation were awarded three-year contracts at the end of the previous Administration. Since then, we have twice extended their contracts by one year so that what was originally a three-year contract became a five-year contract. However, as I have explained to the House before, I am afraid that we have to concentrate limited funds on bodies that are giving sharp-end legal aid advice. These three bodies, particularly the Advice Services Alliance and the local Law Centres Network, are umbrella bodies that do not give such advice. Therefore, although in happier days they could win such contracts and do such work, there is simply no money.

[Baroness Butler-Sloss]

My Lords, is the Minister aware or does he appreciate the significance and importance of the Royal Courts of Justice citizens advice bureau? Having been a judge in that court for many years, I had personal experience of the advantages of the citizens advice bureau looking after unrepresented families in my court. Does the Minister realise that taking away the core funding at this moment, when the Government are also taking away legal aid for private family cases, is going to leave the public and the courts in absolute disarray?

[Lord McNally]

The CAB at the Royal Courts of Justice is able to apply for legal aid contracts in the normal way for the part of its work that is directly legal aid work. As regards broader CAB work, the Government have carried out a number of initiatives to provide funding while voluntary organisations make the transition to a much more difficult economic climate. I very much appreciate the record and work of the Royal Courts of Justice CAB in providing legal advice to individuals. However, I can only say to the House—as I have done frequently as we have gone through this exercise—that we are concentrating our resources on the sharp-end providers and will continue to do so.

Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 4th December 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.

[Baroness Butler-Sloss]

I understood it not to be annual but to be periodic. Annual would be too frequent.

[Lord McNally]

Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.

We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.

As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.

Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.

The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.

However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.

In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.

In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.

The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.

Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.

I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.

--- Later in debate ---

[Lord McNally]

I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.

[Baroness Butler-Sloss]

I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.

[Lord McNally]

No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

Child Abuse: Waterhouse Inquiry

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 14th November 2012 Lords Chamber

[Lord McNally]

It is true that there is now a large number of inquiries. The noble Baroness says 10 and my brief says nine, but I take the point. The Government did not rule out an overarching inquiry, but there is a time to pause on this. Some of the accusations have been put into perspective by rushing to judgment in an overheated way, through Twitter and the new technologies that we live in. Those in authority need to have confidence. We are talking about child abuse; a very serious crime, which people who have evidence of should report to the police. It is not a responsibility of judicial inquiries to find wrongdoers. It is for the police, and if there are people with evidence, they should take it to the police.

There is public concern about whether Waterhouse missed anything. We have asked a distinguished judge to do a specific task in relation to that: to look at whether any specific allegations of child abuse were missed by that investigation and then to make recommendations to the Secretary of State for Justice and the Secretary of State for Wales. That is the right place to be in.

[Baroness Butler-Sloss]

My Lords, I read the report. I was a colleague of Sir Ronald Waterhouse. He produced, as both the noble and learned Lords have said, an impeccable report. If the terms of reference were, “Are there allegations that were not put to Sir Ronald that have now arisen?”, they would be acceptable. However, the Government have—and the Minister really should be taking this on board—cast aspersions on the report suggesting that he did not do a good enough job. If the terms of reference are changed, which I would ask the Minister to do, to say that any allegations not made to Sir Ronald Waterhouse should be investigated, I suspect the House would be a great deal happier.

[Lord McNally]

My Lords, three of our most distinguished judicial Members have spoken out very strongly about Sir Ronald Waterhouse’s integrity. I associate myself completely with them. That was not the situation we faced. We faced growing public concern about whether child abuse allegations had not been investigated. The judge in charge of the new inquiry is taking time to look carefully at what she needs to do the job and will look again to see whether the plethora of allegations that are around need re-examining and whether something was missed in the details of inquiry. I do not accept that that impugns the integrity, processes or findings of the original report. We dealt with a situation of real public concern. I hope the way Mrs Justice Macur now takes it forward will meet that public concern.

I repeat that I associate myself entirely with the comments of senior judicial colleagues about Sir Ronald Waterhouse and his work. It is important to get this on the record. We are indebted to the senior judiciary for so often being willing to take on these very difficult tasks on behalf of society as a whole.

Claims Management Companies: Unwanted Text Messages

Debate between Baroness Butler-Sloss and Lord McNally

Monday 5th November 2012 Lords Chamber

[Lord McNally]

If the noble Lord means complaints about the rogue calls, I do not know, because this Question is not about the rogue calls. In my letter, I will cover it. On the question of texts, the Information Commissioner has announced that he is preparing to levy some very heavy fines on people who abuse the system with texts. But I will make the question on unasked-for calls part of my inquiry and put the reply in the Library of the House.

[Baroness Butler-Sloss]

My Lords, would the Minister add e-mails? I get an enormous number of e-mails every day, generally about PPI but about a whole lot of other things, too. They all seem to be done at about three in the morning. E-mails are just as serious; I spend such a lot of time just deleting all these e-mails on a daily basis. Would the Minister add e-mails to texts and phone calls? I also get the texts and the phone calls.

[Lord McNally]

I agree; I know what absolute anger this matter causes. It sometimes raises a groan when Ministers announce the following, but a cross-industry working group has been set up led by the Direct Marketing Association and including the MoJ’s claims management regulator, the ICO, Ofcom, the Telephone Preference Service, the OFT and the Advertising Standards Authority. They are looking across the piece at what is undoubtedly a nuisance.

Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 30th October 2012 Lords Chamber

[Baroness Butler-Sloss]

Before the Minister concludes, perhaps I may again raise the question of “exceptional circumstances”. I hope that he appreciates the limitation of the word “exceptional”. I think that the lawyers in this House will all agree that that word will be treated by the courts as really meaning exceptional.

[Lord McNally]

I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.

EU: Interpretation and Translation in Criminal Proceedings

Debate between Baroness Butler-Sloss and Lord McNally

Monday 9th July 2012 Lords Chamber

[Lord McNally]

No, my Lords, I do not think we are in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some months to go before the directive comes into play. In the mean time, the Ministry of Justice has a massive interest in making sure that Applied Language Solutions provides the quality and service for which it is contracted. We are making every effort to make sure that that happens.

[Baroness Butler-Sloss]

Is the Minister aware of the extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Not only does it lead to considerable cost but concerns have been raised by judges across the country, particularly in London, Birmingham and Leeds.

[Lord McNally]

My Lords, there have been individual complaints about performance and there was undoubtedly a very poor start to this contract. However, there have been improvements and we are talking about a system with some 800 requests a day for such interpretation. In the first quarter of its operation there were 26,000 requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the performance of the contract in its early stages.

Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Lord McNally

Monday 2nd July 2012 Lords Chamber

[Lord McNally]

My Lords, these amendments all relate to the provisions on the deployment of the judiciary. Of particular note is Amendment 140, which introduces an emergency procedure regarding the appointment of deputy judges of the High Court when there is an urgent need to do so. The Bill introduces a Judicial Appointments Commission process for appointing deputy High Court judges and authorising circuit judges and recorders to sit in the High Court. This is an important reform to increase transparency regarding these appointments.

Amendment 140 would deal with situations where there is an urgent and unforeseen demand for a deputy High Court judge and it is not practicable to draw on any judges of the High Court or any of those who have been selected previously by the Judicial Appointments Commission, or to deploy any other judge who is authorised to sit in the High Court or Crown Court in the time available.

The amendment inserts new Section 94AA into the Constitutional Reform Act 2005. The purpose of this new section is to specify clearly circumstances in which the normal Judicial Appointments Commission selection exercise may not be applied in the appointment of a deputy judge of the High Court for a definite period. This may be needed in exceptional circumstances, such as a number of judges being unwell or suffering some other unexpected misfortune, meaning that a particular area of expertise is required at short notice. The amendment specifies what criteria must be applied if the Judicial Appointments Commission is not to select deputy judges of the High Court. It also clearly limits the duration of the appointment to the disposal of the particular business that gave rise to the use of the power.

Amendment 145 inserts a new Part 3A into Schedule 13 of the Bill. The new part deals with the deployment of judges to the Court of Protection. Our new deployment policy has been applied in this jurisdiction and all judicial officeholders are now able to be nominated to sit in the Court of Protection, including deputies and temporary appointees. Of course, in this and all jurisdictions, judges may be deployed only if the Lord Chief Justice determines that the judge possesses the necessary expertise and experience and deems in all other circumstances that it is appropriate for that particular judge to be deployed to that specific jurisdiction. In this jurisdiction, there has been a particular difficulty in ensuring that the court is fully resourced with judges that have the necessary skills and ability to hear these complex and often difficult matters. The amendment enables the Lord Chief Justice to provide appropriate judicial resources from a broader pool of candidates; it also widens the group of judges who can be appointed to act as the senior judge of the Court of Protection, handling certain administrative functions to that court.

The other amendments in this group on judicial deployment are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to Schedule 13 of the Bill. I will not detain the Committee further with this group of amendments, but I can provide further details of these amendments if needed. I beg to move.

[Baroness Butler-Sloss]

Perhaps I could ask the Minister what may be a rather stupid question. Unfortunately, I do not have the Mental Capacity Act in front of me, but I assume that the President of the Family Division and the judges of the Family Division and the Chancery Division are still on the list of those who will be trying these cases, as they are usually the judges who do it.

[Lord McNally]

I tread on very thin ice, but I think that I can assure the noble and learned Baroness that that is the case. If not, I shall make sure as soon as possible that the Committee knows that I am wrong.

Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 27th June 2012 Lords Chamber

[Lord McNally]

This is my problem as a simple lad dealing with these Silks. I have never used the word “cosy” about the relationship. I have had a chance look at the relationship in the last two years; the last way I would describe the relationship between the Lord Chancellor, the noble and learned Lord, Lord Judge, and the noble and learned Lord, Lord Phillips, is “cosy”. It is businesslike; it is working; but it has an interrelationship which I think is important.

Giving the Lord Chancellor a role in these appointments is not new. As has been said, he already has a role in deciding whether to accept or reject the recommendation of a selection panel. The question is, therefore, how should that input be realised? I understand the different views put forward in the debate, but the Government’s view is that, for these two most senior appointments, given their significant role in the administration of justice, the most appropriate way of achieving this input is to allow the Lord Chancellor to sit on the panels. He can then consider the views of other panel members, submit his own views and engage with the panel members in a meaningful discussion about candidates.

The current system allows the Lord Chancellor to veto a selection panel’s recommendations. This is in itself a major role, but may be viewed as something of a nuclear option—that is what it says in my briefing notes. I think that that option is the one that could only be used in exceptional circumstances and with potentially a heavy price for the relationship with the judiciary and perception of political interference. I do not necessarily agree that these perceptions would be justified, but they are certainly factors which would inhibit the use of the veto. In place of the veto, Schedule 12 provides for a more effective engagement.

A fear has been expressed that this would give the Lord Chancellor disproportionate influence and that the present Lord Chancellor would dominate the proceedings. Perish the thought. Being on the panel, or even having that Lord Chancellor on the panel, would not necessarily mean that the Lord Chancellor would ultimately get his way on the individual appointed, but it would mean that he would have the opportunity to be engaged in the process and make his views known to the other panel members. We are talking about a panel of heavy hitters—a lay chair, plus senior members of the judiciary and appointment commissioners who are strong and independent-minded individuals. They will not simply fall into line with the Lord Chancellor of the day. The Lord Chancellor would have an opportunity to make his case but could also be persuaded of a contrary case by other panel members. However, where the Lord Chancellor does make a persuasive case of the merits of a particular candidate, this could be weighed in the balance in the same way by other panel members.

There are, of course, other possible ways of securing the input of the Lord Chancellor, but we do not consider that any are as effective as our proposal. We could, for example, allow the Lord Chancellor to select a candidate from a shortlist, or through some form of parliamentary hearing. However, we consider that the risk of politicisation of the process from these options is far more acute.

Another option would be to consult the Lord Chancellor at the start of the process. There is nothing wrong with that, but we consider that this is not as effective as having the Lord Chancellor be a member of the panel and be able to put forward his views, listen to the views of others and engage with them in a meaningful way.

[Baroness Butler-Sloss]

I wonder whether the Minister could answer a point that he has not yet answered, which has been made by several people. There is a perception that if the Lord Chancellor is on the panel, the appointment will be politicised. For those who do not know the process but see that the Lord Chancellor has been one of those who has appointed the Lord Chief Justice, there will be a perception, certainly among lawyers and much more widely, that the Lord Chancellor has had a very large part to play in making that person the Lord Chief Justice and that it would be the sort of person who would suit him.

[Lord McNally]

I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.

--- Later in debate ---

[Lord McNally]

There is no deception; I have nothing up my sleeve.

[Baroness Butler-Sloss]

I am sorry—this is only my second intervention but it is my last one. Something as important as this should not be put in a regulation. Why can there not be a government amendment on Report so that we know where the Government stand?

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. There is an overlooked pool of potential future judges—or of what used to be called chairmen of tribunals, who are now judges. It is time that that group in government service of one form or another was seen as a potential. The point made by the noble Lord, Lord Pannick, about the numbers of both women and ethnic minorities is significant. I support the amendment.

[Lord McNally]

My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.

The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.

However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.

Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.

The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.

Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.

I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 27th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today’s amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.

I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in “vary or omit”. All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.

However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.

There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said—entirely accurately—without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.

It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over money, a house or particularly children. They will have to do it but it will clog up the courts to an even more significant degree.

It will have an impact in children’s cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties—and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.

I ask the Minister, in congratulating him on proposing the amendment, to have a real look at the impact on the family courts within no later than a year to see what is actually happening.

[Lord McNally]

My Lords, of course I associate myself with the expressions of sympathy on the untimely death of Lord Newton.

On the matter raised by the noble and learned Baroness, we are committed to undertaking a post-implementation review of the specific policies set out in the Bill. As she acknowledged, we have just replaced a ratchet by a regulator, which should also help in seeing whether some of her predictions come true, and how we react to that.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 7th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.

[Lord McNally]

My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.

However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others—in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant’s income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.

On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.

In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Monday 5th March 2012 Lords Chamber

[Lord McNally]

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.

[Baroness Butler-Sloss]

I am very interested in what the Minister is saying, but perhaps I might ask him to explain whether the points in Amendment 43 will be covered in regulations. If they are, then this amendment is not necessary, but if the intention is not to cover all of those, then the amendment would remain necessary.

[Lord McNally]

If I go on, all will become clear.

We indicated the intended forms of evidence in consultation and listened to views expressed in response. As a result, we widened the range of forms of evidence to include evidence from a multi-agency risk assessment conference, a finding of fact by the courts and the fact of a child protection plan being in place. This last point is particularly important because we moved from an intention just to protect adult victims of domestic abuse to include victims of child abuse by this means.

The allegation that we heard again today was that the Government’s criteria will still miss a great number of genuine victims, and various pieces of evidence were adduced to support this. However, the evidence referred to domestic violence victims as a whole—highlighting their difficulties in dealing with the civil or criminal justice systems, for example. We are dealing with a subset of that group: those who seek private family law legal aid. They will have slightly different characteristics from domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number—there were nearly 10,000 in 2009-10—will seek civil legal aid for a protective order or injunction at the same time as they seek it for their private family law matter. They will all meet the evidential criteria.

We know that in total there were 70,000 legal aid family cases in 2009-10. I will compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010—the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010. In future there will also be those with ongoing criminal proceedings for domestic violence, and those in whose cases a finding of fact in the courts has occurred. Clearly the figures will overlap. However, what this points to is that a significant proportion of the 70,000 private family law cases that we currently fund will continue to be funded. We think that the proportion will be around one-quarter, which matches our rough estimate of the prevalence of domestic violence.

With this in mind, the Government consider that we have got the balance on evidence requirements about right. The forms of evidence we intend to accept will meet a high standard of objectivity. However, I have heard what has been said during the debate, and of course respect the wisdom and experience of those relaying their views to me. We are therefore prepared to go further and accept undertakings as evidence. We are satisfied that undertakings are sufficiently objective and fit with what we consider the right approach. We remain of the view that these forms of evidence are better left to regulations rather than placed into primary legislation. They are points of admittedly important detail, but ones that may be subject to change as the scheme settles in.

I hope that my noble friend Lord Thomas will be reassured by what I said and will not press his amendment, so that we can deal in regulations with the matters covered by it. I also hope that, now she has seen how far we have gone on that matter, the noble and learned Baroness, Lady Scotland, will be persuaded to withdraw her amendment.

As I said, it was extremely useful in the debate to put on record the Government’s determination to combat domestic violence with the entire panoply of services and funding at our disposal. Here we are dealing with a subset of those affected by the issue—a fact that not all speeches today covered. We have tried in our amendments and in the concessions that we made to re-emphasise that we understand the importance of the issue and are determined to make sure that we get the balance right. I hope that neither my noble friend nor the noble and learned Baroness will press their amendment, on the understanding and assurances that I gave of using my noble friend’s amendment as the template for what we will do in regulations.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Wednesday 18th January 2012 Lords Chamber

[Lord McNally]

I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.

I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.

We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.

Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.

[Baroness Butler-Sloss]

I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.

[Lord McNally]

I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief—there is a part that deals with this.

Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph where it appears.

I want to know—“like most normal people”, I was going to say—why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules 2010. For its purposes, it defines domestic violence as,

“physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm”.

--- Later in debate ---

[Lord McNally]

I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose—although I hate using that phrase—in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness’s detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.

It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.

Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments referred to evidence from professionals in a variety of roles. We have widened our criteria, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party. Those referrals can be made by a range of professionals. Further, a finding of fact in the court that domestic violence has occurred will trigger legal aid and the court will be able to assess any relevant evidence.

Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again—for instance, if a second protective injunction is made—the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual’s right under the European Convention on Human Rights, in particular Article 6.

This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.

[Baroness Butler-Sloss]

My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.

I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.

[Lord McNally]

That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report. I assure the noble and learned Baroness that when I say that I shall be taking the matter away, I mean that I shall be taking it back to the Lord Chancellor.

[Baroness Butler-Sloss]

I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition—in particular, by accepting the Minister’s invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.

The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister’s alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.

I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Scotland of Asthal]

I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or she thinks it appropriate, to invite legal representation for that part of the case, and there being legal aid available for the judge to so invite, may be extremely important. It is very unlikely that this avenue would be used very often, but I respectfully suggest that it would be important, in support of what the noble and learned Baroness, Lady Butler-Sloss, says, for that opportunity to be available for the better protection of the child, whose best interests would in those circumstances of course be paramount.

[Lord McNally]

My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.

I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.

[Baroness Butler-Sloss]

I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Monday 16th January 2012 Lords Chamber

[Lord McNally]

That is always the problem. If you say that one thing is more difficult it is implied that the others are easier. No, I was not implying that. I take the noble and learned Baroness’s point. One of the more difficult areas is where there is a break-up of a family and a loss of contact. I shall read what has been said and take it back.

[Baroness Butler-Sloss]

Perhaps I may add to what the noble and learned Baroness, Lady Scotland, has said. I have listened with interest to what the Minister is saying to us, but he suggested that the police would intervene even without going to court. Will he check as to whether the police are prepared to act in the absence of a court order? My experience, which is now six years out of date, was that the police were not prepared to act unless there was a court order. It would be very helpful if the Minister could find out about that very practical and basic point because it adds a great deal of force to what the noble and learned Baroness, Lady Scotland, has said.

[Lord McNally]

I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.

Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.

Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.

The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.

However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.

Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.

The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.

That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord McNally

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—

[Baroness Butler-Sloss]

I am very grateful to the Minister but, speaking as another lawyer, the problem with “may” is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.

[Lord McNally]

But if he “may” and he does not do it, again from my layman’s view and from what I gather my noble friend Lord Carlile was saying, that “may” would be tested by judicial review.

[Baroness Butler-Sloss]

How is that acceptable?

[Lord McNally]

The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.

Crime: Youth Justice

Debate between Baroness Butler-Sloss and Lord McNally

Monday 24th October 2011 Lords Chamber

[Baroness Butler-Sloss]

My Lords, will the Minister ensure that the new youth justice division will work collaboratively and regularly with the Department of Health and the Department for Education?

[Lord McNally]

I can give that assurance absolutely. One of our key approaches across the criminal justice system is to make sure that we have an holistic approach to offending, which particularly applies in the youth justice system.

Legal Aid: Family Courts

Debate between Baroness Butler-Sloss and Lord McNally

Monday 13th December 2010 Lords Chamber

[Lord McNally]

My Lords, one of the Government’s proposals, which I think has some merit, is to attempt to move away from a culture in which the taxpayer pays for litigation, particularly in family disputes. Many studies have shown that the litigation route to settling family disputes exacerbates the dispute and causes lasting harm to all sides of the family, particularly the children.

[Baroness Butler-Sloss]

My Lords, as a judge who tried a large number of family cases in which both sides were litigants in person, I can confirm that such cases will take much longer. Does the Minister realise that there is a hard core of people who fight over their children and who will not agree through mediation? I would be delighted to take part in consultations with the Government on what will happen.

[Lord McNally]

My Lords, I fully appreciate the noble and learned Baroness’s long and great experience in these fields. Certainly, some cases may be lengthened by the fact that neither side is legally advised, but the intention, as I said at the beginning, is to try to move a large number of such cases away from the court system into mediation and other forms of settlement. I fully accept her point that family disputes can become so bitter and intractable that resolution is very difficult, but that still does not argue the case for the taxpayer funding both sides in that kind of dispute.