Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 10 months ago)
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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.
Baroness Hamwee
I want to ask my noble friend a question about Amendment 140. He described the circumstances and need for flexibility in the ability to appoint temporary High Court deputy judges. I would like to ask about the business for which they would be needed, in proposed new Section 94AA(2)(a), which refers to both an “urgent need” and the “disposal of particular business”. He mentioned the need for special expertise, but has he any further examples of what the “particular business” might be? I take it that we are not being asked to agree to temporary appointments to deal with urgent business per se. It is the term “particular business” that interests me. I could have pictured this clause better if it did not refer to “particular business” but to “business” in general. I am sorry that I did not give the Minister notice of the question. He may wish to come back to it at a later point.
Lord McNally
I, too, am rather sad that my noble friend did not give me notice of the question. I am pleased that we are bringing in a role for the Judicial Appointments Commission in the appointment of deputy High Court judges. To put it bluntly, there was a suspicion in some areas that the appointment of deputy High Court judges was the last surviving remnant of the “tap on the shoulder” system of appointments. Therefore the proposals to bring the appointments commission into the process are important.
However—I say this in the presence of the noble and learned Lord, Lord Woolf, with all his vast experience—we were determined not to put the Lord Chief Justice of the day into a straitjacket. He has to be responsible on a day-to-day basis for deploying the judiciary and, if there is a need to appoint a deputy in an emergency, we should have the ability to do so. Hence, in introducing the provision, there are many references to exceptional circumstances and a definite period so that this emergency procedure would not lead, again, to a way of appointing deputy High Court judges by a tap on the shoulder. It leaves the Lord Chief Justice of the day with the wriggle room to deploy efficiently but makes sure that the main appointment of deputies now comes within the ambit of the Judicial Appointments Commission.
As for specific examples, the best I can do is to write to my noble friend giving her some examples, which I hope will reassure her. I shall, of course, put a copy of the letter in the Library of the House for the benefit of the Committee.
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 11 months ago)
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Lord Rosser
My Lords, the amendment would ensure that persons representing the views of police and crime commissioners are included in the definition of “strategic partners” set out in Part 1. The definition refers to,
“such persons as appear to the Secretary of State to represent the views of local policing bodies”.
Earlier in Part 1, a “policing body” is defined as including within its scope a police and crime commissioner. Perhaps the Minister will tell us whether the reference to “local policing bodies” in the definition of “strategic partners” also means local police and crime commissioners, or whether it means something different from the earlier definition of “policing body”—and if so, why.
It is important that police and crime commissioners are included as strategic partners. Under Clause 3, the Secretary of State is required in determining strategic priorities for the National Crime Agency to consult strategic partners. Bearing in mind that a police and crime commissioner will be responsible for issuing a police and crime plan and in so doing will have to have regard to the strategic policing requirement issued by the Secretary of State, it would seem odd if the Secretary of State were not required when determining his or her strategic priorities for the National Crime Agency to consult with persons representing the views of police and crime commissioners. Likewise, in preparing his or her annual plan, the director-general of the National Crime Agency must, under Clause 4 in Part 1, consult with the strategic partners. It would seem inappropriate if these partners did not include police and crime commissioners, bearing in mind that the annual plan sets out how the director-general intends that the National Crime Agency functions should be exercised. This could well have an impact on the functioning of local police forces, including whether that force is efficient and effective, which it is a statutory responsibility of a police and crime commissioner to secure.
We also learnt from the Minister last week in Committee that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to perform a task of unlimited magnitude, impact and scope specified in such a direction without having to obtain the consent of the Secretary of State or even having to consult the elected police and crime commissioner responsible for the force whose chief officer the director-general is ordering to take that particular course of action. That might be, for example, as the Minister told us,
“to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area”.—[Official Report, 20/6/12; col. 1800.]
Potentially, that is hardly a minor task in terms of either time or resources.
On top of that, we were also told by the Minister that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to provide unlimited specified assistance to the National Crime Agency, also without having even to consult the elected police and crime commissioner responsible for that force—even though, as the Minister said, providing assistance involved transferring resources from the command of one force to another force or organisation.
To many people, that will seem an odd state of affairs, designed to marginalise the elected police and crime commissioner. If elected police and crime commissioners, now that we are going to have them, are not even one of the strategic partners to be consulted by the Secretary of State when determining strategic priorities for the National Crime Agency, or by the agency’s director-general when preparing the annual plan, then it would be further confirmation that police and crime commissioners are intended, in many ways, to be little more than figureheads—a situation and role that any self-respecting elected police and crime commissioner will, I am sure, be unwilling to accept. I move this amendment and await the Minister’s response.
Baroness Hamwee
My Lords, I have Amendment 68 in this group, and it is another amendment to the definition of “strategic partners”. The relevance of strategic partners is their role as consultees of the Secretary of State when she determines the strategic priorities for the NCA. We are all familiar with the scope and importance of the NCA’s functions. My amendment would add to the list of strategic partners the Security Service, the Secret Intelligence Service and GCHQ. There was a time when a fiction was maintained about the existence or otherwise of at least one of these organisations but I think that we have moved beyond that. It seems to me unthinkable that the Secretary of State, given the subject matter of consultation on strategic priorities, would not consult those agencies.
Last week, on Second Reading of the Justice and Security Bill, I commented on how the priorities and concerns of the Office for Security and Counter-Terrorism, which is embedded in the Home Office, seem to have affected—I am not making a judgment on this—all the Home Office’s thinking. As I say, I simply cannot believe that these services and agencies would be omitted in such a consultation. If it is not the case, then why not say so? If it is, then why is it?
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Hamwee Excerpts(12 years ago)
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Baroness Scotland of Asthal
I hope that I can help the noble and learned Lord. On the last occasion on which I spoke, I said that I accepted that even my amendment would leave out many people who needed and should have help and assistance, and that I was not happy that even my amendment would go as far as it should, but I was drawing back from the ideal, accepting that the Government wanted a very narrow gateway. That is point number one.
Point number two is that if, in such a situation, the woman had available to her and could produce evidence that there had been a number of police calls to her home, notwithstanding the fact that she had not pursued it to the extent of asking for or supporting a charge and a conviction, then she would still have evidence available to her which she could rely upon, notwithstanding the fact that while the parties lived together she had not pursued it as she should have. One reality that we have had to face for a number of years is that, quite often, victims will hide from the perpetrator, as opposed to confronting him, but there are occasions when the perpetrator will find and pursue the victim and then the victim has no choice but to respond. It is in those sorts of cases that, if we do not give a greater degree of flexibility, we will find that there is difficulty. That woman might have not gone to the refuge, but she may have received telephone or other support from it indirectly. Therefore, part of our amendment is asking for not only admission to a refuge to be included, but also other evidence that could be given by the third sector or professionals to say that there was valid evidence upon which the woman would be able to rely to prove that there had been domestic violence.
Baroness Hamwee
My Lords, I hope that my noble friend, in responding to this, can help the House as to how extensive regulations can be to cover the concerns that have been expressed. I have spoken on many occasions over the years about domestic violence, and my response to a lot of what has been said, particularly comments made by the noble Baroness, Lady O’Loan, whom I respect enormously, is to think that we should be doing more with the services that we give to, mostly, women who find themselves in this situation. However, that is about services—refuges and other sorts of help—and it does not go to the evidence, so I hope that my noble friend can help expand on the answer that we have been given by the Commons: that regulations should deal with these matters.
Lord McNally
My Lords, the noble and learned Baroness, Lady Scotland, is a powerful advocate. Throughout, she has presented a case against the Government which I am sure has swayed a number of your Lordships. That is why I sometimes get a little bit exasperated. For example, the right reverend Prelate says that the wool was pulled over his eyes, but I assure him that I made every effort to make clear where we are going, how we are going there and why we are going there on this Bill. Rather like the outgoing Labour Government in their manifesto, we sought to cut legal aid. The noble and learned Baroness read out a load of statistics that suggested that this Bill might achieve that purpose. I point out that part of our approach from the very start was to try to move away from litigation to arbitration, mediation and the alternative settlement of disputes, and we will do so in the various parts of the legal system that were covered by legal aid.
I worry sometimes when I listen to the language that is used. I heard what the noble Baroness, Lady O’Loan, said, and I read in a Sunday newspaper that women who could not get into refuges would be denied legal aid—as if that was it, and they were like Oliver Twist being turned away from the workhouse door. The noble Baroness knows that that is not true.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Hamwee Excerpts(12 years ago)
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Baroness Grey-Thompson
My Lords, this amendment is in my name at this stage. However, it received support from the late Lord Newton of Braintree and the noble Baronesses, Lady Eaton and Lady Benjamin, throughout the passage of the Bill.
This amendment is narrower than the one that was previously carried by your Lordships’ House. I was extremely disappointed that, due to the financial arrangements in the other place, I had to remove the areas of consumer law and immigration, as the latter alone accounts for around a third of the cases affecting children. This Motion makes legal aid available for children in cases where a boy or girl is a victim of medical negligence or malpractice, in all cases of private family law, education, housing and social welfare and for criminal injury appeals only after they are financially means-tested and found to qualify. This Motion would give legal aid to about 3,000 extra children a year who are not explicitly covered by the Bill. It would cost the Government about £3.2 million a year and could be easily affordable. When you consider that the Legal Services Commission is sitting on £500 million-worth of confiscation orders that it has not yet collected against supercriminals, there are other ways to save money rather than targeting children.
At present, legal aid helps around 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid will not be available for thousands of children under the age of 18 who would qualify if the current rules remained in place. It is estimated that between 5,000 and 6,000 children could be affected. The Government have not explained the rationale of why some children are being treated differently from other children who have problems under the same categories of law.
On our 40th day of debate in your Lordships’ House I asked why 220 of last year’s cases on education would qualify but 110 children would not receive access to legal aid. I still have not had an answer to that question. We have been told that individual children may qualify under an exceptional cases fund, and more information has been provided, but I still fear that children will fall through the net.
It is probably slightly unfair of me to quote the Minister when he was questioned about exceptional cases on the previous Motion, but he said that it is hard to quantify the amounts. For me, the merits of the case are not enough without knowing some of those figures. It could mean that more is spent than we are saving by doing this.
Why do I feel so strongly about this? It is because children are children; they are not adults. Children do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them. The question of children’s capacity to represent themselves is explicitly recognised and provided for in international law.
I remind your Lordships’ House that the Children’s Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European Convention. She wrote:
“Children, by virtue of their age and capacity will not be able to present their case effectively in the majority of proceedings … Children’s need for legal aid in civil cases where they are a party should not be viewed as ‘exceptional’”.
In virtually all these cases a child will be taking action against the state, and we do not yet know how the state will begin to act if it cannot be challenged. It is therefore wrong that the state has discretion on whether it will grant legal aid to a child who is challenging it. Such systems are not synonymous with accountable and democratic systems. I ask noble Lords once again to support this Motion. This issue is so important that we should ask the other place to reconsider the case of these children. I beg to move.
Baroness Hamwee
I shall say a word about one of the items that has been left out of this list: immigration. I am sorry that the noble Baroness has decided, for reasons that I understand, not to include it in the list. We know that immigration matters will not be within exceptional funding, so that route will not be available. Unaccompanied children arriving here may very well initially claim asylum, but a child who makes an asylum claim that fails and fails again on appeal will fall back on an immigration claim. For instance, a child who comes here at, say, the age of 12 and does not succeed on asylum but gets leave to remain will after three years, at the age of 15, be seeking immigration status in circumstances that will have changed dramatically.
I can see that there may be different considerations for a child who comes within a family but there must be cases where the child should be represented separately. We have a spent a lot of time on this and we know that immigration is complex; that social workers are not qualified to deal with it; and that legal advisers need to be specially licensed for it. I know that we are not in a position to change this but it is right to put on record some disappointment. But there is hope that as time goes on the Government will realise that this is something on which particular help is needed.
The Earl of Listowel
My Lords, I support the noble Baroness in her amendment. I should like to talk about young people leaving care at the age of 16 or 17 and how this affects them. I was very grateful for the opportunity to meet the Minister this morning and for his reassurance in this area. Following that, I spoke to a personal adviser—when children leave care they are appointed such an adviser to support them during their transition from care—who said, “It is so helpful to be able to go on certain occasions to a professional, a solicitor, to get a letter to get access to welfare and the right housing for these children”.
About one-quarter of children leaving care do so at the age of 16. Therefore, we often have very vulnerable young people who really can benefit from expert advocacy. While I welcome what the Minister has said in terms of reassurance, this matter in particular needs to be looked at. He highlighted the use of the exceptional funding avenue. The personal adviser said that often it is not a question of going to court but of getting in early and getting a good letter to make the local authority or other agencies aware of the legal situation and then things would be done correctly. It would be helpful if the Minister in his response could give an assurance that the exceptional funding avenue is easily accessible in those circumstances. I strongly support my noble friend’s amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Hamwee Excerpts(12 years, 1 month ago)
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Baroness Butler-Sloss
As the co-chairman of the All-Party Group on the Trafficking of Women and Children, I again congratulate the Government and express my gratitude not only to Ministers in this House and in another place but to the government lawyers and officials. The people who were so helpful on the previous set of amendments have been equally helpful on this, and I and those behind me are enormously obliged to them for the care with which they have gone through this and their ability to recognise, listen to, take on board and accept the points that have been made which are now reflected in this excellent amendment.
I wonder whether I might again produce a wish list for consideration at some later stage. There are four points that I would like to make. First, there are those who have been trafficked who do not know that they have been trafficked and will need advice about whether they have been trafficked. Secondly, there are implications for referral to the national referral mechanism. That point was discussed with the government lawyers. I understand why Ministers do not want to help those who do not refer themselves, but there will be a group or groups of people who will fall through the net. Thirdly, there are those who do not know whether they may have an entitlement to leave to remain other than by an asylum claim, such as discretionary leave to remain. That group will also not be covered. The fourth group is rather different. It is those who would wish to challenge a decision by the Home Office that they do not come within the NRM. Those are perhaps matters for another day. At the moment, those behind me and I are enormously grateful for what we have already got.
Baroness Hamwee
My Lords, I, too, welcome these amendments and add my thanks to the officials who have dealt with them. My file of print-outs of e-mails last week is quite large. I thank the Minister as well. I know that his experience in Scotland means that he was already alert to the issues surrounding trafficking. I think the whole House owes the noble and learned Baroness enormous thanks for keeping us at it and for keeping at it herself.
The Minister mentioned conditions, and I understand the concern about possible overuse—abuse would be the wrong term here—of the category of victim of trafficking for immigration applications far in the future. During the discussions last week about what has ended up as these two amendments, there was a suggestion that there might be a reference to prescribed conditions and then a decision that what is now Clause 11 could cover matters, as the Minister said. Will he tell the House whether there are any other concerns that the Ministry has in mind at the moment—it may find others—apart from the time limits?
The noble and learned Baroness mentioned concerns about the workings of the national referral mechanism and time limits. Like her, I hope that that will be kept under review. I have two other areas of concern around this. If legal aid is not available until there has been a reasonable-grounds decision, will the Border Agency put the immigration case on hold? In the mean time, what happens if the individual is in detention or is without housing and food? At the previous stage of the Bill, I referred to the complex needs of trafficked people and mentioned housing and benefits. Immigration is often the gateway to them. Article 12 of the convention refers specifically to accommodation and generally to subsistence, and I suspect the Government would prefer to be clear about this rather than find themselves with claims under what is now Clause 10. The importance of identifying victims of trafficking is a moral matter, but it is also important because of their role in detecting and prosecuting traffickers, and it may take some time for a victim to be identified or to self-identify, so I am adding to the list of considerations. The Government have said that they will keep matters under review and they now have a mechanism to do so. Therefore, I welcome the amendment, although there may still be work to be done.
Lord Elystan-Morgan
My Lords, I wholeheartedly agree with what has been said by all speakers on this matter. For any new criminal offence to be created, or for any existing criminal offence to be extended, there is a heavy onus on the Government of the day to show that that is reasonably necessary. It is against that template that Clause 145 fails completely. There is a great deal of misunderstanding about the matter, which may very well have been deliberately fomented by the right-wing press. It is said to people, “What would you do if you were on holiday and came back to find that there were 20 people living in your house and having every intention of living there for ever?”. Of course, you would say it would be absurd for such a situation not to be visited by a criminal sanction—but it is already visited by a criminal sanction.
The civil law has catered for this situation—whether it be developed property or not—for a long time, since the early 1970s. Those of us who belong to the noble calling of the law will realise that Order 24 and Order 113 apply and provide a procedure that is swift, effective and cheap, provided it is competently carried out. There is no problem whatever so far as the civil law is concerned.
In 1977, with the Criminal Law Act that the noble Baroness has referred to, it was realised that there were situations where owner-occupiers were in fact trespassed upon in their own homes, normally when they were away for a day or two or where people were expecting to move into property but found that they could no longer occupy it. Section 7 of that Act said very clearly that it did not apply to non-residential property. A clear distinction was drawn and deliberately considered in detail by Parliament. That seems to have been a boundary of common sense, fairness and justice.
Why is that boundary being transgressed now? What is the case in favour of changing that boundary? It is my submission that there is no case whatever for doing it. The civil law amply provides for civil sanctions. If those are not obeyed, then of course the courts can always act on the basis of contempt of court. The punishments are severe, as we know. The criminal law deals with those cases when it is right, proper and inevitable that there should be a strict criminal sanction. It does not apply to non-residential property because it was never thought necessary that it should do so. The Government of course have issued a consultation paper on this matter, to which a substantial number of people responded—96 per cent of whom said there is no need to change the law at all. This is not a case of softness towards people who defy the law but a case of looking in a mature, fair, just and proper way at a problem. The conclusion of so many people in an excellent position to judge is that there is no need whatever to do anything. A letter in the press signed by 163 distinguished petitioners, jurists and academics, supported that view. The Criminal Bar Association, the Law Society and the Metropolitan Police supported that view. In relation to the consultation, the Metropolitan Police said:
“The Metropolitan Police, responding on behalf of the Association of Chief Police Officers, considered that the law was broadly in the right place and that the existing array of offences allowed them to tackle the worst cases of squatting (e.g. where squatters cause the rightful homeowner to be displaced) … They warned that new offences could have an impact on policing in terms of community relations, local policing objectives and cost”.
On the question of cost—and I have no doubt that other noble Lords will deal in some detail with this matter—it is abundantly clear that the Government’s own estimate of a cost of some £25 million to the public purse over a period of five years is woefully inadequate and entirely unrealistic. They have not taken into account the fact that tens of thousands of persons squatting do not apply for housing allowance. These cases, if people are ejected from their squats, will find their way into the courts. There will be massive expenses adherent to that situation. Again, there is little doubt that the figure of £25 million— I would not seek to try to set a specific figure—can probably be multiplied by 10 or 20, leading to a massive non-saving in a Bill that is dedicated to saving expense to the public purse.
I ask the House to consider one further matter. This is retrospective legislation. Clause 145(1) applies to a situation when a person, the defendant, has trespassed in the premises, knowing that he is trespassing. He may have entered 10 years before, when there was no such thing as a criminal sanction in relation to that type of trespass. That is retrospective legislation and that is what Parliament abhors and resorts to only in the most drastic of circumstances. It is the very thing that is condemned, as the House knows, by Article 7 of the European Convention on Human Rights.
All in all, this is a wholly unnecessary piece of legislation. It is utterly merciless, utterly unfeeling and utterly costly, and it is likely to be a heavy and unnecessary burden on the time and energies of the police. The next best thing to rejecting it would be to accept the amendments, which I support wholeheartedly.
Baroness Hamwee
My Lords, I congratulate my noble friend on her persistence in dealing with this matter and provoking some very powerful speeches from your Lordships, as well as making her own.
The issue is homelessness and housing supply. Whatever is being done now by the current Government, the stark fact is that at this moment the housing needed is just not there and cannot be created in an instant. Ordinary, decent, desperate people, whose motive is not envy, or to deprive others, or to make a political statement, are simply seeking a roof. Many of them would be regarded as vulnerable, in any normal sense of the word. Like my noble friend, I am interested in and concerned about the interface between these provisions and local authorities’ housing responsibilities —in particular, whether a conviction is needed for someone who has been squatting to be unintentionally homeless. How does all that fit together, and what guidance will be given to local authorities on this?
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Hamwee Excerpts(12 years, 2 months ago)
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Baroness Hamwee
My Lords, I am sorry that I was unable to take part in the debate in Committee.
The noble Baroness has spoken powerfully about a very serious subject. I share the views of those who responded to the consultation with some doubts about whether it was appropriate or necessary to change the law. These included key stakeholders such as Women’s Aid, Refuge, Liberty and the Local Government Association. I share their concerns about whether introducing a new law is realistic.
I do not know anyone who has gone into a relationship with the mindset that suggests checking up on the new partner through this sort of scheme. Most importantly, it could well be a distraction from the important work that still needs to be done in this area, but I will not spend more time on that. The thrust of the noble Baroness’s speech was about the pilots. If legislation was not needed for the pilots, legislation is not needed for their assessment. I would not lose faith in any Government if, having committed themselves to pilots, they would seek to avoid an evaluation and assessment. We have too much on the statute book. Let us see the evaluation of a pilot put in place on the basis of the law that we have now before Amendments 155 and 156 or anything like them. I will take my cue from my noble friend and put asking questions about it in my diary. I dare say that the noble Baroness, Lady Gale, will do the same. She has a great record for raising these issues, so she is not going to let this rest. Parliament is going to hear about it.
Baroness Northover
My Lords, when we debated these amendments in Committee my noble friend Lord McNally was able to tell the Committee how sympathetic the Government were to the thinking behind them, borne out of the circumstances of the tragic murder of Clare Wood by Clare’s ex-boyfriend who had previous convictions for violent offences. I pay tribute to Clare’s family and to the noble Baroness, Lady Gale, and others on this issue.
As the noble Baroness has flagged, the Home Secretary has announced the Government’s intention to pilot a domestic violence disclosure scheme for one year in the four police force areas of Greater Manchester, Gwent, Nottinghamshire and Wiltshire. The pilot will start this summer, and I hope that noble Lords will welcome it. The pilot, which is similar in spirit to that envisaged by the noble Lady’s amendment, will be established under existing police powers and test two types of process.
The first will be triggered by a request by a member of the public, in other words, a “right to ask”. The second will be triggered by the police, where they make a proactive decision to disclose the information in order to protect a potential victim, which we are calling a “right to know”. The Government believe that a disclosure scheme, which establishes a framework with recognised and consistent procedures for disclosing information, will enable new partners of previously violent individuals to make informed choices about how and whether they take that relationship forward. I note what my noble friend Lady Hamwee said on this, and it may be that she would prefer the second pilot.
The Home Secretary’s announcement follows a consultation held by the Government. A clear majority of respondents favoured the introduction of a national disclosure scheme. However, the consultation raised important issues about the scope and proportionality of the information that should be disclosed to potential victims, the safeguards that will be needed against malicious applications and the paramount need for the safety of victims to be taken into account. These are serious matters, and the Home Secretary has concluded that it is therefore right that these issues are addressed and tested in a pilot to ensure that the disclosure scheme is compatible with all relevant law and accounts for the safety and needs of potential victims. The Home Office is undertaking further scoping work to decide how the disclosure scheme will work.
Amendment 156ZA would require the Secretary of State to commission an independent review of the pilot and to publish its findings. I can confirm, as my noble friend Lady Hamwee indicated, that we will conduct an assessment of the domestic violence disclosure scheme as part of the pilot process and make our conclusions public. I hope that that reassures the noble Baroness, Lady Gale. The assessment will be used to inform decisions about whether the scheme should be expanded further after piloting.
The House may be assured that the Government’s aim is to end all forms of violence against women and girls. Soon after coming to office, we set out a new strategy to end violence against women and girls, and on 8 March we published an updated action plan in this area. The domestic violence disclosure scheme pilot announced by the Home Secretary is part of that updated action plan. The fact that approximately two people are killed by their current or former partner each week underlines the need for action. The Government believe that the domestic violence disclosure scheme will be an important additional tool that enhances the protection available to victims. I thank the noble Baroness, Lady Gale, for her work in this area, and I hope that with these reassurances she will be willing to withdraw her amendment.
Baroness Hamwee
My Lords, I will not take the time of the House by sharing anecdotes and expressing gratitude; all that can be taken as read. It is late, but the House is a good deal fuller than it was earlier this evening. I share many concerns expressed about the licensing of sites and the separate licensing of dealers, and about the possibility that in a cashless system legal operators will not find sellers to sell to them. Mention was made of the fact that the offence will be purchasing rather than selling, although we heard about the Theft Act. Concern was expressed about whether the definition of scrap metal will extend to used domestic appliances, and about whether we will see an entirely new group of outlets.
Will the Minister say something about the timetable for implementation? Like others, I look forward to the wholesale reform of the system. However, clearly these provisions are designed to come into effect before that will happen. Will the government amendments that will find their way into the Bill come into effect immediately on enactment? I add to the point about the review and express concern about the speed with which we will see wider reform. If we are looking to review the provisions in five years, let us hope that they will have been overtaken long before then.
Lord Berkeley
My Lords, I congratulate my noble friend Lord Faulkner on taking this matter forward with so much pressure and commitment. My concern is that we seem to be discussing a parallel universe. The people in the BMRA, referred to by the noble Lord, Lord Roberts, do everything according to the book, and we are very grateful to them. However, I believe that there is the growing involvement of organised crime in this, as the noble Baroness, Lady Browning, said.
I have heard quite a lot of evidence about the way in which containers can disappear overseas without anyone knowing what is in them. It is not very difficult, especially if you do not live in a leafy part of Surrey or Buckinghamshire, to hide containers, and itinerant scrap merchants can get the metal into containers without anyone knowing very much. Perhaps the money comes from overseas. As many noble Lords said, the problem will grow. In the short term, the only solution is to support my noble friend’s amendment to get rid of this major loophole.
Lord Henley
My Lords, I cannot give the noble Lord that figure without notice. I have no idea. I imagine that it might be possible, at disproportionate cost, to find out the number. All I am saying is that if they want to be an itinerant trader of that sort, they need a licence from their local authority and that has to be approved by the police. There is a very strict control on that particular aspect.
The noble Lord, Lord Campbell-Savours, rightly pointed to another problem—displacement. Could some of this go to Scotland? We are well aware of this problem. As the French discovered when they introduced a similar system, there was a danger that things would cross the border into Belgium and Germany. I have discussed this with colleagues in Northern Ireland and Scotland, although Scotland is more important, as there is a land border. Our colleagues in Scotland are well aware of what we are doing and are in full consultation with us. They will try to make sure that whatever they do keeps in line with what we wish to do.
The noble Lord is, for honourable reasons, merely seeking delay—delay that I am sure the BMRA would think was a worthy object to achieve. However, we do not think that it is right. We think that it is right to get rid of cash as soon as possible from this industry and that that will make a difference.
The last point that I want to address is that made by my noble friend Lady Hamwee about timing. I am afraid that I cannot give any categorical assurances to her about when and how we will get that further legislation. However, I make it clear, as my honourable friends in another place have done, that this is the first part of the package. We want to continue taking forward a coherent package to deal with all the other matters in the future, but I cannot give her any guarantee about timing.
Baroness Hamwee
My Lords, I did not expect my noble friend to be able to help me with regard to future legislation. I am sorry that I did not make myself clear. I was asking about commencement of these provisions, which will shortly find their way into the Bill and the Bill will no doubt shortly make its way on to the statute book. I am concerned about the current provisions.
Lord Henley
My Lords, these provisions will come into effect soon after Royal Assent, but I will check up on that and allow my noble friend to have the precise answer in due course.
Lord Howarth of Newport
My Lords, in some circumstances I might have hesitated to support the amendments that have been tabled by the noble Baroness, Lady Miller of Chilthorne Domer. However, in the circumstances in which we find ourselves—circumstances in which the Government have made drastic cuts to new provision of social housing and have introduced reforms to housing benefit which will cause significant numbers of people to lose their homes—I can only support the noble Baroness’s amendments. I do not think it is right to criminalise vulnerable homeless people, as she describes them, who seek to find a roof over their heads in empty properties in these circumstances.
Baroness Hamwee
My Lords, I would like to support my noble friend as well. I share her concerns about criminalisation. I agree so much with everything that has been said so far, so let me see if I can extract the questions from my notes. First, with regard to this new provision—as it appears it will be—as against Sections 6 and 7 of the Criminal Law Act 1977, how are decisions to be taken as to whether to prosecute under one of those sections or under what is currently Clause 136? Is government guidance going to be given or will it be provided by the CPS?
One of my noble friend’s amendments refers to the police and enforcement. Clearly, she is right to draw attention to that because it is a matter of enforcement. Her first amendment, relating to 12 months, strikes me as being quite modest given that the provisions in force, the Empty Dwellings Management Orders—they were brought in when there were nearly 700,000 empty homes but the figure may well be higher—provide a six-month exemption. A period of 12 months therefore seems quite modest.
I am also concerned about the term “residential”. In its bare form, is that term used elsewhere in legislation? The suggestion in the amendments is to link this to classes of use. The Bill provides simply for “residential” to be a building,
“designed or adapted … for use as a place to live”.
I am not sure what “live” means or what permanence that implies. I know of a number of buildings that are adapted as places to reside. I would include in those City offices where in the past I have had all-night meetings and I know that those had every facility one could possibly need. I daresay government departments have those as well.
Finally, I should like to pick up the references made to the vulnerability of people who find themselves in a position where they take the decision to squat. It is hardly a decision because it is the only course open to them aside from rough sleeping. It is not a desirable thing to do and I do not believe that most people who do this would not prefer conventional accommodation. One of the organisations which has been in touch with some noble Lords is called Squash, which is almost an acronym for Squatters’ Action for Secure Homes. That is such a telling name. What is being proposed will drive people who want secure homes into much more dangerous situations. I am delighted that my noble friend has put so much effort into addressing the issues raised by these clauses.
Freedom of Information Act 2000
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Lord McNally
My Lords, I like to take pride in having played this by the book, in that I referred the Freedom of Information Act to post-legislative scrutiny, and it is entirely proper that Sir Alan Beith and his committee should look at a whole range of issues and proposals, including that of charging, which other jurisdictions such as Ireland have brought in. However, it is a matter that we will look at when we have heard what the post-legislative scrutiny deliberations bring forward.
Baroness Hamwee
My Lords, clearly much more information is routinely being published and the culture is changing. To be sure that the system works as well as possible for users, and there must be a number of specific categories that can be identified, will the Government consider undertaking research into the changes that users might welcome to make the system more effective, if that is not covered by the Justice Select Committee?
Lord McNally
My Lords, when this House and the other place considered the original Act, they specifically made applications applicant and motive-blind, and for very good reason. We believe that it benefits the public by providing access to information in the public interest, without targeting specific individuals who are asking those questions. The Ministry of Justice publishes quarterly and annual statistics on the volume, timeliness and outcome of information, but I would still be reluctant to move from the principle of it being applicant and motive-blind.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Butler-Sloss
My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,
“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.
That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.
I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.
What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.
Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.
Baroness Hamwee
My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.
I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.
I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.
Lord Borrie
My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.
I remind your Lordships that many branches of administrative law—or what is nowadays called that—were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: “No more law, no more lawyers”, when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.
If I were given the choice between simplifying that and my noble friend’s amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.
Baroness Hamwee
I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.
Lord McNally
I think that we can all reflect. I will respond to my noble friend after such reflection.
Lord Judd
My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.
What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.
Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.
I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.
Baroness Hamwee
My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.
There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.
I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.
We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Thomas of Gresford
My Lords, I am sure that the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Newton, will appreciate the importance of the concessions which the Liberal Democrats have negotiated—namely, that there should be a power in the Lord Chancellor to put areas of law back into scope because they may very well be right. It may be that these alterations will be more expensive than the Government think at this time. I very much welcome Amendment 68 which keeps birth injuries within the scope of legal aid. The reason for being concerned about cases claiming damages for personal injury arising out of medical negligence is that they currently receive legal aid as an exception to the previous Government’s removal of legal aid in personal injury cases.
Of course, four out of five claims fail or are withdrawn. Unlike a car accident or a factory accident, it is very difficult to appreciate negligence where negligence happens without the highly specialised and expensive investigation to which my noble friend Lord Faulks has referred. Although I have some experience of medical negligence cases, I defer to his very great experience and expertise. He raises the question, which I think is on everyone's mind: if you make an exception for birth injuries, what about the rest? It does not mean that claimants will be denied access to justice. If at the moment 80 per cent of clinical negligence cases are handled by conditional fee agreements, a greater proportion of these cases will simply be added to that route for funding.
In the course of the reforms that are set out in this Bill, it is essential that one-way cost shifting occurs in relation to cases that are brought under conditional fee agreements. That means that, win or lose, the defendant insurers will pay their own costs. The reason for the huge rise in insurance premiums, to which the noble and learned Lord, Lord Lloyd, referred, is the huge increase in the costs of the defendants. If four out of five claims fail, a claimant is very much without insurance; after-the-event insurance is very much at risk of being ruined by bringing an action. If, as the Government propose, one-way cost shifting is applied in this area, the unsuccessful claimant will have to carry only the costs of the disbursements. In medical negligence cases, as has been pointed out, such costs can be very high. It was for that reason that, in the Commons, the Government, recognising the problem, amended the Bill so that the cost of the premium of ensuring the disbursements, the costs of the medical expert reports, will be passed over to an unsuccessful defendant and will be absorbed, in the usual way, by the insurance company if the claim does not succeed. The insurance premium, instead of being at the dramatic size that it is at the moment, will be very much reduced and the risks under conditional fee agreements of unsuccessful claimants paying a great deal of money will be very much reduced.
The whole area of medical negligence needs to be looked at. Although we have been talking about high-cost cases, in fact the majority of these cases attract damages of less than £20,000. They are for negligent treatment for minor injuries perhaps. We are not always talking about catastrophic injuries in relation to medical negligence. Therefore, I have been arguing for an NHS redress scheme, such as that which was introduced in Wales within the past two years. The Government have said that they regard that scheme, which deals with cases up to a value of £20,000, as a pilot and, depending on how the scheme goes, will consider introducing it into England.
But the power already exists. The previous Government passed the NHS Redress Act in 2006 and Wales grasped the opportunity, as did Scotland. They grasped the opportunity of introducing a scheme with fixed fees for lawyers and fixed fees for expert reports to satisfy the problem that exists with low-value medical negligence cases. If we could progress that a little further in England, it would do a great deal to relieve the concerns that have been expressed here today.
I hope that my noble and learned friend Lord Wallace will be able to make some favourable noises in relation to an NHS redress scheme. The Opposition could not object: they brought in the Act in 2006, though they never thought that the people of England deserved it being implemented. On the other hand, the people of Wales took a different view. All reports so far on how its scheme is going suggest that it works well, reduces legal fees and provides solutions for people who have been injured. I hope that the Minister will tell us that something along those lines will be considered in this very difficult area.
Baroness Hamwee
My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.
The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?
Lord Beecham
My Lords, before I address the amendments, I must correct something that I said in Committee. I unfortunately misrepresented the noble Lord, Lord Wigley, as saying that 10 per cent of National Health Service patients suffered clinical negligence. I rather conflated different figures. He referred to the fact that a million of what are described in somewhat Orwellian language as “adverse incidents” take place in the health service, of which only 10,000 give rise to claims, which represents only 1 per cent of those adverse incidents.
The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government’s original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way—though not far enough—towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.
However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government’s approach, saying:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements (CFAs) in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view is at odds with that of the noble Lord, Lord Thomas. Given that the litigation authority is at the receiving end of these claims, I am inclined to give rather more weight to its views.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Clinton-Davis
My Lords, I agree entirely with the points just made by my noble friend. The views of the legal profession—the Bar and the Law Society—ought to be taken into account, and perhaps the noble and learned Lord who is to reply to the debate can comment on that. My understanding is that both have made submissions to the Government about their concern—concern which is profound and goes to the heart of what we are talking about. It is essential that the director’s independence from the Government is ensured and underlined, so there can be no cavilling about this. The issue is vital—always provided, of course, that the caveat entered by the Opposition’s amendment is underlined as well.
The final point I want to make is this. We are not legislating for the immediate future, we are legislating for the long term. If we are wrong, we can always amend it, but the principle that ought to be underlined in this debate is exactly that—that we are debating for the long term.
Baroness Hamwee
My Lords, comments have been made about perception, and perception is important in this context. I wonder whether my noble and learned friend can help me. Reading on from Clause 4, there is the provision in Clause 5 that the Lord Chancellor in giving direction under Clause 4 would require the director,
“to authorise, or not to authorise”,
certain things to happen. I do not know whether a direction “not to authorise” is usual. If it is then so be it, and it may be that the point which I am raising is quite irrelevant. However, it struck me as an interesting provision.