Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord Newton of Braintree

Monday 12th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.

The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.

I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.

I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?

We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.

[Baroness Butler-Sloss]

My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,

“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.

That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

Welfare Reform Bill

Debate between Baroness Butler-Sloss and Lord Newton of Braintree

Tuesday 14th February 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I would like briefly to take up a point made by the right reverend Prelate the Bishop of Ripon and Leeds in relation to kinship carers. I spoke previously on this and I remember that the Minister was sympathetic. I would be very glad to get some reassurance as to where his sympathy lies and how he proposes to endorse it.

[Lord Newton of Braintree]

My Lords, I am intervening only briefly, partly because I do not want to attack the right reverend Prelate, who seemed to be in a much less militant mood than he was on the previous occasion. I will, therefore, not repeat the remarks that I made then, when I made the point that what he was asking for was an increase in the benefit cap. I refrained from saying at that time—and the House ought to bear this in mind when thinking about all of this—that child benefit for the first child is now worth about £1,000 a year tax-free. For every other child it is a bit less than that. Bearing in mind that it is tax-free and that we are talking about a benefit cap of £26,000 net, which is said to equate to £36,000 gross, if you put child benefit on top you are looking at a position in which you would have to be a higher-rate taxpayer in order to hit the benefit cap, in terms of what you would have to earn. People ought to bear that in mind.

My main point is to express some reservations about the amendments tabled by the noble Lord, Lord McKenzie. What do we mean by “local area”? He really needs to answer that. My noble friend Lord Fowler and I—and I have already referred to some of our travails over housing benefit in 1986 to 1988—looked at this question of localisation and regionalisation. It is intractable, because housing costs do not vary on a regional basis or even on a district or city or borough basis; they vary on a street-by-street basis. Is that what the noble Lord has in mind? If so, it would become a complete administrative nightmare. He needs to think very carefully before pressing this particular line, whatever its intellectual attractions.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I put my name to Motion H2—which is linked to Motion H1—and will speak to it now. The amendment was drafted by the noble and learned Lord, Lord Mackay of Clashfern, who is, as I am sure noble Lords will know, away on a well deserved holiday. He is very sad that he cannot be here today; I am literally standing in for him.

The noble Lord, Lord Boswell, has reminded us of 25 January on Report when there was overwhelming support for the amendment put forward by the noble and learned Lord, Lord Mackay of Clashfern, demonstrated by the very large vote in this House. Of course, that has been reversed by the Commons. This amendment is, quite properly, not a replica of the earlier one. The earlier amendment referred to the payment of fees to the CSA by a single parent claiming maintenance from the other parent for children living generally with her rather than with him. I welcome the Government listening about the cost of the initial charge, and the very substantial reduction of the charge to £20. They are very much to be congratulated on that.

This amendment has a much more limited function and deals with a much more limited situation in which all efforts have been made to obtain payments by the other parent and it is necessary for the single parent to use the CSA statutory mechanism. If money is received from the other parent by that method, there is a collection charge, which provides a deduction to be made from the maintenance received. As the noble Lord, Lord Boswell, has already said, that seems to be a levy of between 7 per cent and 12 per cent of the money collected from the parent with care of the children.

I take on board the points made by the Minister, and what Frank Field said, as well as the help given to single parents by state aid and the fact that a review of this charging regime is promised. However, I make no apology for repeating the quotation made by the noble Lord, Boswell, of the noble and learned Lord, Lord Mackay, who said:

“I do not believe that it is fair to require them to pay charges when they are not responsible for creating the need for the use of the service”.—[Official Report, 25/1/12; col. 1090.]

I would like very briefly to make a few more points. The money is to help in the upkeep of the children and not for the parent. Many highly regarded charities support this limited amendment—time does not permit me to say which they are but there is a considerable number of them. We are looking at parents in the poorest section of society who may receive a very small amount of money from the other parent and upon whom the major financial burden of the care of children rests.

I understand that—unlike the Government’s view—most cases are not very expensive, costing £350 a case if managed through the main computer system and £600 a case if managed off the main computer system. Of course, there are cases that cost significantly more, and sums of up to £25,000 have been mentioned, but I am informed that they are the exception, not the rule. According to the Government’s own impact assessment, the future average cost of processing an application is expected to be about £220.

This amendment, if accepted, would have limited financial impact on the CSA for the majority of applications but would make a significant difference to this deserving group of single parents. I urge the Minister to think again.

[Lord Newton of Braintree]

My Lords, I am intervening—as usual, you might think—for two reasons. First, on the previous occasion I sat down there and declared that I was standing shoulder to shoulder with my noble and learned friend Lord Mackay of Clashfern, which indeed I was, and I was therefore part of the vote that has caused us to be having this debate this evening. I will say something about that in a moment. Secondly, when this got to the Commons, a person who I do not know, described as Mrs McGuire, who I take from the context is a Labour Member of Parliament, read out the list of Conservative former Cabinet Ministers who had voted, including my name, and went on to say:

“I do not think that any of these people were fully paid up members of the liberal tendency”.—[Official Report, Commons, 1/2/12; col. 926.]

If it were not for parliamentary privilege, I would sue her! I just wanted to get that off my chest.

Welfare Reform Bill

Debate between Baroness Butler-Sloss and Lord Newton of Braintree

Wednesday 25th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, if anyone wondered why I moved from my earlier position, they would have guessed that it was to stand shoulder to shoulder with my noble and learned friend Lord Mackay. He and I were in cahoots over the attempts to tackle this problem 20 years ago. We were in cahoots with what was said in Committee on this matter, and I have made it clear that I intend to remain in cahoots with him on this amendment.

I have not been at the meetings, but I have had a number of conversations with Ministers and I give them credit for being willing to talk to me as well. I think that my noble friend in front of me will acknowledge that I have consistently said that if they could satisfy my noble and learned friend, I would not seek to push it, but if they could not satisfy him, I would stick with him. Essentially, I share his views. I do not think that it is fair, right or productive. The letter that presumably went to everybody in the House was mostly convincing. I have no problem with the case for reform or the desire to cut the costs. I have no problem with the desire to encourage people to collaborate voluntarily. What I have a problem with is that I do not think that those general points connect to the conclusion that my noble and learned friend’s amendment is wrong. I shall vote for it if he decides to press it, following what has been said.

It is a simple position. I will not rehearse his arguments or seek to elaborate them. I shall make only one other point which relates to the 13-month review. I am in favour of a review, but the case for reviewing it after experience is stronger on the basis put by my noble and learned friend than on the basis put by my noble friend the Minister. If there is evidence that it is discouraging sensible, voluntary arrangements in the interests of children, we can look at it again then. I do not believe that it will—and this would need to be shown before we changed from the basic, fundamental proposition that it is not right, fair or just for a parent with care to have money deducted on these grounds from the money paid for her children.

[Baroness Butler-Sloss]

My Lords, in the family courts the welfare of children is paramount. It is particularly important to remember that in relation to the amendment that the noble and learned Lord moved, which I very strongly support. I have absolute, practical experience as a family barrister and judge, from long before the CSA came into being and took that work from judges. I have vivid recollections of a certain group of parents, principally fathers but occasionally mothers, who absolutely would not pay. There was no point in even asking them—although I understand why the Minister thinks that they should be asked. They would do everything in their power not to pay. The only way they can be got at now is through the commission. It can only do a better job than the CSA, which profoundly failed at the task it was set.

These parents will not pay, and the idea that a mother in very poor circumstances, left with young children by the father, may find herself having to seek social benefit from the state, which she may not have sought before, when the father may have money while she has nothing that the state does not provide, and may then have to pay a fee to try to get money for the welfare of her children, particularly where she has no money and the father may have some, is profoundly unfair. I respectfully and strongly support the noble and learned Lord, Lord Mackay of Clashfern, and hope that the House will support him, too.

Public Bodies Bill [HL]

Debate between Baroness Butler-Sloss and Lord Newton of Braintree

Tuesday 23rd November 2010 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I hope the Committee will forgive me for not being present throughout the debate on this first amendment but I have been at a Select Committee.

I rise for two reasons: first, respectfully to agree with everything that the noble and learned Lord, Lord Woolf, has said; and, secondly, to point out four particular examples in Schedule 7 which are subject to the power to add to other schedules. I cannot see how the examples I am going to give could be added to other schedules. First, where would the Royal Botanic Gardens go to? Secondly, the Children and Family Court Advisory and Support Service had a very unhappy gestation but has now become relatively effective; to interfere with it would be a disaster for children in this country. I know something about the third example, the Family Procedure Rule Committee, because I used to be its chairman. Where do you put that? My last example is the Gangmasters Licensing Authority. The Committee will remember the Chinese cockle pickers and why we established the Gangmasters Licensing Authority. How on earth can it be added to another schedule?

[Lord Newton of Braintree]

My Lords, I rise, first, because I want to get a word in edgeways as a non-lawyer; and, secondly, because it seems appropriate that I should follow part of what the noble and learned Lord, Lord Woolf, said—prefacing it by declaring a now historic interest as the person who chaired the Council on Tribunals and its successor body, the Administrative Justice and Tribunals Council, for no fewer than 10 years from 1999 until last year. My name is not attached to the amendment of the noble Lord, Lord Borrie, and I shall speak to the AJTC later, but I appreciate and agree with what the noble and learned Lord, Lord Woolf, has said.

As I was not able to be here for Second Reading, I shall not make the Second Reading speech I might have made, deeply unhelpful as the Government would have regarded it. However, I wish to make three points. First, I welcome, as did the noble and learned Lord, Lord Woolf, the spirit in which my noble friend Lord Taylor of Holbeach has responded to the criticisms at Second Reading. Whether or not it goes far enough we shall discover in the course of our debates, but it has been a remarkable exercise in rewriting the Bill as it goes along. It must have taken him quite a lot of work to persuade his colleagues to make such changes. I congratulate him and I do not want to make his life any more difficult.

Secondly, albeit as a non-lawyer and without going over all the speeches, I could not find a word uttered by the original proponent, the noble Lord, Lord Lester, or his seconder, as it were, the noble Lord, Lord Pannick, with which I disagree, and there are probably quite a few noble Lords on this side of the Committee who share that view.

Thirdly, I say to my noble friend—as I am happy to call him—Lord Phillips, a former constituent, and to the Minister that I spent five years as Leader of the House of Commons—I was more or less in charge of the Government’s programme in those days—listening to Ministers trying to say that you did not need to put stuff in a Bill because it was implicit and impaling themselves on a ludicrous argument that something that did not make any difference was worth dying in a ditch over. I hope the Minister is not going to do it again.