Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Tuesday 23rd April 2013 Lords Chamber

[Lord McNally]

I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.

He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.

The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.

I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.

The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.

[Baroness Hayter of Kentish Town]

My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.

I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.

As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.

--- Later in debate ---

[Lord McNally]

Before the noble Baroness sits down—no, she is absolutely right—and before she lures Lord May and others into her Lobby, would she confirm that what we are doing in this Bill would have significantly assisted both Simon Singh and Mr Wilmshurst? We have not left the situation as it was. We have made significant changes and built in significant protections, which should be taken into account before people decide which way to vote.

[Baroness Hayter of Kentish Town]

If they read my article, they would see that it says that this Bill has gone a long way towards what we want and it is only a shame that it is not perfect. As somebody who likes perfection, I am going to ask the House if, particularly on the first amendment, we should ensure that organisations carrying out a public service should not have the right to sue for libel.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Thursday 17th January 2013 Grand Committee

[Baroness Hayter of Kentish Town]

My Lords, the amendment in my name and that of my noble friend Lord Browne of Ladyton would extend the privilege set down in Clause 7(4) to local government. This is probably the existing intention of the clause; we can see no reason why it would not be. It is really simply for the avoidance of doubt that the suggested wording would give comfort to those local journalists who play rather an important role in propagating the work of local councils.

It would also be useful to seek some clarification from the Minister, to whom we gave some notice, about whether this clause covers the Welsh and Northern Ireland Assemblies—although the Bill does not cover Northern Ireland, reports of that Assembly could well appear in our newspapers and affect people here—and the Greater London Authority. I am fairly sure that it covers all of those and is about government in its broadest sense, but we want the wording to make that clear. I beg to move.

[Lord McNally]

My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.

I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.

Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.

Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do not believe that this is necessary. We consider that local authorities are already covered by the reference to,

“any authority performing governmental functions”.

The Defamation Act 1952 covered information published,

“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.

The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,

“any authority performing governmental functions”,

should be read as embracing the specific bodies referred to in the 1952 Act.

There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

There is no answer to that. On the first point, on the face of it, it appears to be not a bad idea. I think that some of us feel that half the problem is that auditors are not sacked often enough. On the Financial Services Bill, we went through many of the things that they somehow failed to notice. I cannot resist saying that the people who would be most likely to sue are, of course, auditors. Auditors are firms. If we were to get our way about resisting non-natural persons having the same rights as natural persons, perhaps we could get around it that way. That is partly because I cannot resist reminding the Minister of that.

On conferences, my fellow members of the Joint Committee said that we felt that the peer-reviewed nature of the documentation or the speech is important. However, in many of the cases of scientific conferences where action has been taken, it has been taken by a corporation. That is not wholly so, but very frequently, so there may be more than one way to skin this cat. We would support the rightful emphasis on peer-review.

[Lord McNally]

In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.

Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.

Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.

Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.

The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.

The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.

We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.

We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.

[Lord McNally]

My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.

I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Tuesday 15th January 2013 Grand Committee

[Baroness Hayter of Kentish Town]

This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.

[Lord McNally]

My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.

The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.

We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.

I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.

Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.

My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.

It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Monday 17th December 2012 Grand Committee

[Baroness Hayter of Kentish Town]

My Lords, although I am sure Lord Mawhinney will respond, as he moved this group, I shall make one point on the amendment standing in my name and that of my noble friend Lord Browne. If a company was attacked on its ethical role, that would also show in its share price—those of my generation might remember Barclays selling arms to South Africa. This would not necessarily affect sales, but it could still substantially affect a company’s financial position because its share price would be affected. There are other ways of measuring financial loss, and this is similarly the case with very small companies. If a very small shop of the kind found in Kentish Town was accused of having rats in the cellar, that would immediately lead to a drop-off in the number of people shopping there, and therefore I think that would count as substantial loss. Concerning the specific drafting, once the Minister has accepted that he will move his own amendment on the arguments we have given, I am sure his officials will make sure that the drafting is perfect.

[Lord McNally]

I have known the noble Baroness so long that I know when she is tempting me into sin. However, this has again been a very useful, very helpful debate. I confess that when I started out on this one of the things I wanted to do was to address the problems that have been faced by academics and others in making legitimate criticism and legitimate comments. Having listened to a large number of individuals and interested parties, there is no doubt in my mind that this law can have a chilling effect, and it is used very ruthlessly to stifle debate. I hope that we can do something to address this as we progress this Bill.

The noble Baroness, Lady Hayter, has obviously been very kind to me, because she did not point out that when I gave evidence to her committee I said that in my opinion corporations should not be allowed to sue. The then Lord Chancellor, Ken Clarke, took me into a quiet room, sat me down and, with the persuasiveness for which he is renowned, convinced me that corporations do have reputations and what the noble Lord, Lord Phillips, described as an ethical identity. This is a serious point, which has come out in the debate. As we go through the Bill, we are continually trying to get the balance between defending reputation and defending free speech. They are continually in our mind.

Regarding costs, I again point out to the noble Lord, Lord Mawhinney, although he clearly has doubts about the way these things are done in government—I do not know whether that comes from personal experience—that we have tasked the Master of the Rolls with the job of looking at this matter within a specific timescale: by next March. Since then, we have had a clear statement by the Prime Minister that the Government accept the recommendation by Leveson that there should be a cost-transferring system in defamation. Any powers of influence I have will be used to try to ensure that this is not go into the long grass. I am quite sure that the Master of the Rolls, Lord Dyson, will understand the urgency and the expectation that comes from the work with which he has been tasked.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Thursday 9th February 2012 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, as has been set out very clearly, the amendment seeks to ensure that anyone leaving custody gains swift access to the benefits to which they are entitled. We often think that coming out of prison is very positive, but it can be traumatic for people, particularly those with multiple needs. With no financial contingencies, these people usually rely on a benefits system that they experience as complicated, slow and unhelpful. In extremis, some return to crime, as the noble Lord said, because before they went into prison that was their proven source of income. Delays in accessing benefits can lead to financial hardship, stress and an increased risk of reoffending.

The Prison Reform Trust in its Time is Money report found that eight of 10 former prisoners claim benefits, so it is essential that we make sure the process of claiming is as simple and as hurdle-free as possible to give these post-custody people the best chance of staying away from crime.

One report on adults with multiple needs documented the problems that they faced on coming out of prison, including delays of up to four weeks before the first payment, with no explanation; problems with claims made before they went to prison that had to be resolved before any new claim could be made; claims delayed because of no fixed address, as has already been referred to, or other unstable living arrangements; disputes over prison admission and release dates; and problems caused by not closing down a claim on entry to prison, which results in a fraud investigation and the new claim being suspended.

We also know that a third of people in prison do not have a bank account. This makes the payment of a deposit for housing or early expenses even harder to organise on release. Help beforehand and immediate access to benefits are key if the person is not to feel the need to return to using other people's money just to survive.

The report also emphasises the need for help and advice while still in prison—even more so over the coming years as the benefit system will, for most prisoners, have changed phenomenally by the time they come out from what they saw and knew about when they went into prison. For all the advantages in the Welfare Reform Bill—and, despite the arguments that we will have on Tuesday about its disadvantages, there are undoubtedly some advantages in it—the system of social security facing prisoners on release will be very different from the one they knew before. That will affect their re-emergence into a household. The payment of the universal credit to only one partner in the couple and other complications will need to be sorted out in advance.

In addition, half of prisoners have debts awaiting clearing on release, according to one survey, and one in three owes money for housing, which also makes access to a new home even more difficult.

The Centre for Social Justice has also highlighted similar problems faced by people leaving custody. Its report, Locked Up Potential, recognised that delays in processing benefits mean that many people who are discharged have no source of income when they most urgently need it. The report concluded:

“To bridge the finance gap, with the objective of reducing the resulting crime which it can fuel, we recommend that all prison employment and benefit advisers be required by the … DWP and the MOJ to initiate core benefit applications at least three weeks prior to a prisoner’s nominated release date”.

Along with the noble Lord, we consider three weeks to be rather too short. Nevertheless, will the Minister let us know what discussions his department has had with the Department for Work and Pensions about responding to the recommendations in that report, thus ensuring that those leaving prison are not left with gaps and delays in accessing the financial support that may be essential to them for starting a new life?

I welcome the comments that the Minister made in response to the earlier amendment about access to the work programme. Undoubtedly, that is of great advantage to people coming out of prison. Access to advice on the whole new system of universal credit well before a prisoner’s release date, and preferably when they first go into prison, would be of great advantage to them and to the rest of us. We hope very much that the Minister will accept this amendment.

[Lord McNally]

My Lords, it is very nice to see the noble Baroness, Lady Hayter, at the other side of the Dispatch Box. I presume that she is on the night shift. The noble Lord, Lord Ramsbotham, is correct. We recognise a certain familiarity about the amendment from another Bill but it is none the worse for that. The reality is that the MoJ and the Department for Work and Pensions are in close contact on these issues and are trying to work through them.

I am reminded of a visit I made to a Turning Point project in Birmingham when I talked to a young man who was being helped and trained. He said, “You can’t imagine the cold feeling in the pit of your stomach on your day of release”. The noble Baroness, Lady Hayter, indicated that there is a broad consensus that one of the trigger points for reoffending is problems in resettling in the community on release. It is also true that some face problems in accessing benefits. In addition, we should do more to equip offenders to work, enabling more of them to be productive members of society on release and not a burden on the state, which was the subject of our earlier debate.

The National Offender Management Service is working to develop financial capability in custody by increasing access to money advice services. A number of prisons also commission financial advice from local CABs and through contracted housing advice services. We also encourage rent arrear repayment schemes. NOMS has also granted funds to Unlock, of which the noble Lord, Lord Ramsbotham, is president, to increase offender access to financial services. I was very pleased to attend and to speak at the launch of a handbook produced by Unlock to help prisoners with financial issues. We recognise that more work needs to be done to encourage prisoners to save towards their discharge across the estate and to make use of the IT available, which would support them in preparing for release.

More than half of those sentenced to custody are claiming benefits at the start of their prison sentence, and two years after release nearly half are still claiming out-of-work benefits. That is why we are working so closely with the Department for Work and Pensions to overcome the gap in access to benefits, which the noble Lord has outlined, and to ensure that our plans to get Britain working will get more offenders into jobs. However, I do not believe that the noble Lord’s amendment will assist in achieving these aims. It would require us to conduct unnecessary assessments for all prisoners. This is because the work done on entering prison is highly likely to need updating as the sentence continues. At this time of fiscal constraint, it is vital that we look extremely carefully at how resources are targeted.

Staff working in prisons already take relevant steps when someone comes into custody to help sort out their benefits. New prisoners are specifically asked about this at induction and are referred to one of the 140 Jobcentre Plus employment and benefit advisers currently working in prisons. However, support does not end there, as we also recognise that release from prison into the community is a key transition point in the journey from crime to rehabilitation. Prison staff and employment and benefit advisers also take steps to help individuals make an application for a community care grant, usually about six weeks prior to discharge, so that payment can be forwarded to the prison and made available on release. They will also help in explaining how an individual can apply for a crisis loan on release.

[Baroness Hayter of Kentish Town]

I am not so much the night shift as the Welfare Reform Bill shift. Of course, the grants that the noble Lord has just referred to are to be abolished. I trust that prisoners will be aware that they will no longer be available because the Welfare Reform Bill abolishes them.

[Lord McNally]

Yes, but not instantly, and there will be a transition to the new scheme that I will explain shortly. It is unfair, if the noble Baroness sat through the Welfare Reform Bill, to start brandishing her knowledge at this time of night!

All this activity is aimed at ensuring that ex-prisoners can access advice on employment and benefits. It is backed by the new NOMS specification for rehabilitation services which requires, as a minimum standard, that prisoners are supported to sort out their financial problems.

As I mentioned earlier, during the debate on the noble Lord’s amendment on employment and training in prisons, we are working to overcome the remaining barriers as part of the Government’s welfare reforms. This includes our plans to use the work programme as the primary vehicle for help and support, whereby all prison leavers who claim jobseeker’s allowance will enter the work programme from day one of release from prison. This means some 30,000 prisoners a year will claim jobseeker’s allowance and start the work programme on release from prison or within the following 13 weeks.

These changes will also mean that instead of arranging an appointment for the prison leaver to attend and claim jobseeker’s allowance on release, the claim for jobseeker’s allowance will be taken in prison, to start entitlement immediately on release, allowing mandatory referral to the work programme. We will also continue to work with the DWP, Jobcentre Plus and other agencies, including in the voluntary sector, to ensure that prisoners have all necessary information about claiming benefits on release, and in pursuing programmes that prevent reoffending.

The noble Lord has specifically raised concerns about what will happen in the case of ex-prisoners who are not seeking work. As the noble Lord, Lord Freud, also explained in the debate that touched on this issue, we are aiming to address the finance gap through our plans for universal credit payments, which are paid monthly in arrears. Under the proposals, an applicant, on leaving prison and with a valid claim, can be paid their claim immediately through payment on account. I think this will strike the right balance, in ensuring that ex-prisoners can access their benefits quickly through payment on account, and that our resources are primarily focused on getting more offenders into work.

I hope with those explanations that the noble Lord will be reassured to the point that he will withdraw his amendment.

--- Later in debate ---

[Lord McNally]

Part of the problem with this debate is that we cover two areas, which we were discussing earlier. First, there are dangerous people from whom society needs protection, and we have to deal with them within our criminal justice system. Secondly, you do not need to be in this job very long, or to visit very many prisons, to realise that there are people in our prisons who have no place there and who, with a proper policy of rehabilitation in its broadest sense, can be stopped from reoffending. We are really fighting on those two fronts.

On whether there should be a glide path into work, perhaps that is where we can get the work-in-prison regimes working properly. That in itself can help in that direction. The other thing that I am also very enthusiastic about and would like to see developed, and where the voluntary sector is superbly equipped to help, is mentoring schemes, and finding people who are willing to act as mentors. That could have a powerful effect. I do not think that there is division in the Committee on that. We are trying the perhaps revolutionary idea of joined-up government in making sure that the move from prison to a proper, productive, law-abiding life is not aborted at those first steps through the prison gates because of lack of basic support.

[Baroness Hayter of Kentish Town]

Perhaps the Minister would use joined-up government to do one other thing. I mentioned when I intervened just now that the Social Fund was going to be abolished and that both grants and loans would become the responsibility of local authorities. The DWP has undertaken to issue a “settlement letter” about it to local authorities. One of the areas that we were worried about with regard to the Welfare Reform Bill was that a person would have to have a local connection to be able to claim either their replacement for social care grants or crisis loans. It is exactly ex-offenders who are least likely to be able to qualify because they may not have ties with the place that they go back to. It would be extremely helpful if the Minister could in discussions with the DWP stress the importance of that settlement letter making it clear that ex-offenders should be eligible for those payments even if they go to a local authority area where they have not just moved from because they are coming out of prison. His help on that would be greatly appreciated.

[Lord McNally]

I will gladly draw that to the attention of DWP.

Political Party Funding

Debate between Baroness Hayter of Kentish Town and Lord McNally

Thursday 15th December 2011 Lords Chamber

[Lord McNally]

For a party that has pretty consistently polled over 20 per cent of the vote in recent general elections, there is certainly no self-interest about the 10 per cent figure. Indeed, we should all wait for the next election, which as we all know, usefully, is in 2015. Four years is a long time in politics.

[Baroness Hayter of Kentish Town]

Given that we are all in agreement, maybe I should say that I agree with Nick.

Given that the Liberal Democrat manifesto promised to get big money out of politics by capping donations at £10,000, would not the best way of ending the big donor culture perhaps be for the Minister’s party to return Michael Brown’s money—money that was not his to give and should never have been accepted?

Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (No. 2) Order 2011

Debate between Baroness Hayter of Kentish Town and Lord McNally

Tuesday 15th November 2011 Grand Committee

[Lord McNally]

I will address that in my closing remarks.

I was about to say that the matter of the extension of this order was raised in particular by the noble Lord, Lord Hunt of Wirral, who is not in his place today. Noble Lords will be aware that the Rehabilitation of Offenders Act allows individuals lawfully to conceal certain spent cautions and convictions after a specified period of time has elapsed. The Rehabilitation of Offenders Act allows individuals to do this by declaring certain cautions and convictions as spent. Once a caution or conviction is spent, the individuals need not declare it when applying for most types of employment, seeking licences or applying for insurance.

The Government believe that individuals who have put their criminal past behind them should be given a chance to reintegrate into society. Research has consistently shown that employment reduces the risk of reoffending. By removing unnecessary barriers to employment, the Government are therefore demonstrating their commitment to clearing the way for ex-offenders to lead law-abiding lives. The Government also recognise the importance of protecting the public; therefore, there must be a balance. In certain specified circumstances, for example, it is right that employers or regulators are aware of an individual’s full criminal record history when they are determining the individual’s suitability to fulfil a certain role or carry out a specific activity. The exceptions order amending this Act seeks to achieve this balance towards public protection.

The exceptions order lists specific activities for which the employer, regulator or other relevant body is entitled to information about the spent cautions and convictions of persons applying to carry out that activity. These activities are those that present individuals with a particular opportunity to cause harm to the public or involve regular contact with a particularly vulnerable group. This includes work with children, as well as work in certain sensitive financial or legal positions.

Today, I am seeking to extend the exceptions order to those seeking to hold a restricted interest in an alternative business structure. During passage in this House of a previous amendment in an exceptions order in June this year, a number of noble Lords raised concerns about the risk of criminal ownership to alternative business structures. Following that debate, the Ministry of Justice expedited consideration of a business case, seeking further amendments to the exceptions order in relation to the provision of legal services. After careful assessment of the business case, we concluded that the exceptions order should be extended to persons who hold a restricted interest in an alternative business structure. This, the Government believe, addresses the immediate concern of safeguarding the new structures from the risk of criminal ownership—a point that was made at the previous debate by the noble Lords, Lord Hunt of Wirral and Lord Thomas of Gresford. It effectively captures those who might pose a risk of improper management of firms providing legal services, including the risk of the exploitation of access to client money.

Schedule 13 to the Legal Services Act requires all those who hold a restricted interest in an alternative business structure to be subject to a fitness-to-own test. Information about an individual’s spent convictions will form part of that test. Therefore a licensing authority, when determining whether or not an individual is fit and proper, will be entitled to ask questions about the individual’s previous criminal history, which will include any spent cautions or convictions.

While the Law Society and other consultees welcomed the decision to make this further exceptions order, they also expressed a desire for further exceptions to be made, in particular for non-lawyer managers of alternative business structures who do not hold a restricted interest. It is important to state that the framework of the Legal Services Act makes provision for a statutory approval process only for those persons who fall within Schedule 13. There is not a separate statutory provision which allows for the approval of non-lawyer managers who do not hold a restricted interest. Our analysis found that all non-lawyer managers will be captured by this order, unless the percentage of their interest or voting rights falls below the statutory threshold that constitutes a restricted interest under Schedule 13. Our analysis is that such persons would not pose a significant enough risk to the management of an alternative business structure to justify making an exception. However, if a licensing authority deemed it necessary—and if the Legal Services Board agreed to the change to its regulatory arrangements—it has the power under Schedule 13 to make licensing rules so that the threshold at which a person is considered to have a material interest in an alternative business structure is less than the 10 per cent threshold set out in Schedule 13.

I am satisfied that this order effectively addresses the immediate risk to alternative business structures of criminal ownership. As we go forward and begin to see alternative business structures in operation, the Ministry of Justice will consider any future business case to extend the exceptions order further, in the usual way. Should compelling evidence be presented that additional roles in relation to alternative business structures or the legal services sector should be added to the exceptions order, then the appropriate amendment could be made.

I am sure that noble Lords will appreciate that, when deciding whether or not the exceptions order should be extended to a particular role or activity, the Government must be mindful of the careful balance between access to information about spent convictions and the important goal of improving access to employment for offenders who have proven that they have put their criminal lives behind them.

I believe that the decision to extend the exceptions order only as far as necessary, to persons who hold a restricted interest in alternative business structures, will enhance the regulatory safeguards in relation to those seeking to hold a material interest in an alternative business structure, but will also ensure that this balance is maintained. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, I would like to speak on the first of the two orders. I no longer have formally to declare an interest as I no longer chair the Legal Services Consumer Panel, but it was in that guise that I had such an interest in the implementation of this part of the Legal Services Act and the availability of the alternative business structure—a sort of one-stop-shop—which has been very strongly supported by consumers of legal services.

As the Minister said, this order is part of the architecture for setting up the alternative business structure licensing system, and it will allow the SRA to become a licensing authority by the end of this year—sadly, not by 6 October as was originally hoped, but nevertheless within 2011.

As has been outlined, the order deals with appeals by applicants who want to be an ABS against the granting of a licence, which is effectively the permit to act as a recognised ABS, by the SRA’s licensing arm. Similar appeals about, for example, whether an individual is fit and proper to own an ABS, or to be the head of legal practice or a head of finance administration, and decisions to impose licensing conditions or the imposition of a financial penalty would also be heard. Under the system being put into place by this order, as the noble Lord, Lord McNally, has said, the existing SDT, although slightly adapted, will hear such cases rather than the First-tier Tribunal, which will be used by the other licensing authority, the Council of Licensed Conveyancers. As has been mentioned at an earlier stage, we regret perhaps that there is not a single body dealing with all such appeals in order that a real body of expertise and precedent can be built up, which would give certainty and consistency to this aspect of the new delivery service.

As regards the new service, I know that we do not often congratulate civil servants but the MoJ and the Legal Services Board have worked immensely hard to get all this quite complicated machinery into place. They should be congratulated. As part of that, it is disappointing that the only reason—I know that the Minister gave two—that the Law Society via its SRA arm has insisted on a separate route rather than the First-tier Tribunal is because of the tribunal’s own rules about awarding costs. At the moment the SDT, when considering solicitor conduct cases, has the power to award costs to be paid by the losing to the winning side. Therefore, the SRA’s costs are always met. Under the new process, having gone to the tribunal, the tribunal would hear not the case brought by the SRA but an appeal against the SRA decision. Thus, as the tribunals do not generally have the power to award costs unless it is a case with absolutely no merit, the SRA would have to meet its own costs. I fear that not using the First-tier Tribunal is the reason for this separate order today.

I think that it is in the interests of business or consumers to understand the rules as they develop. It is also probably not in the interests of the Government or the LSB, which needs to watch carefully over this new system. It is quite a risk to set up something like alternative business structures. The MoJ and the LSB will need to look over the new system of legal service provision and how it is bedding down. It would have helped to have a single appeals body regardless of which front-line regulator was handling the case.

However, the rules that the SDT will apply are to be welcomed. They are virtually the same as those in place for the First-tier Tribunal, which will help with consistency in the short term and perhaps allow for adjudications to be combined at a later date. With those comments, I certainly support the order.

Parliamentary Voting System and Constituencies Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Monday 13th December 2010 Lords Chamber

[Lord McNally]

As I said, the issues are not simple, as the noble Lord, Lord Rooker, who served in that department, knows. We are running pilot projects; there is no great mystery.

[Baroness Hayter of Kentish Town]

My Lords, I thank noble Lords, including the noble Earl, for their support for this amendment. As a new Member, I was amused by the description of this as a simple Bill—I am dreading the next ones—and by the idea of a Christmas tree. My noble friend Lord Soley said that there were two things on the Christmas tree. I now picture the Minister as the fairy on top. The image will remain with me.

The noble Lord, Lord Maclennan, is not in his place, but I think that at one point he suggested that this was an attempt to delay the referendum. It is absolutely not that. I am particularly interested in a high turnout for the referendum and in catching the interest of our young people. The more that they are involved in the arguments, the higher the turnout will be. I have tabled another amendment to set a threshold. I hope that those noble Lords who also want a high turnout will support it.

The noble Lord, Lord Newton of Braintree, said that he had already voted for two parties. If in the local elections he would like to go for a third, I can suggest one that would be very attractive. He said that this was not the right vehicle. I had not thought about that argument, but my noble friend Lord Soley was right: the Bill is about reform of the parliamentary voting system and there is almost nothing more important than who has the vote in that system. Whether the voting age should be 16 is a key issue, even for those whom I may not have persuaded. I was asked whether there was a demand for this. I cite the Youth Parliament and the research of the Power inquiry, which suggest that there is. I was horrified by my noble friend Lady McDonagh saying that it was 40 years since the voting age was lowered to 18. I would have guessed that it was about 20; that says something about one’s age. It is time to look at this issue again.

Basically, those of us who put our names to the amendment won the argument. There is general support for voting at 16. The objections that were thrown up were practical ones rather than issues of principle. The practical objections could be overcome if there was a desire to do so. As my noble friend Lord Desai said, this is not a constituency-based vote but a national one—although I may challenge that in future. The real issue is that nearly everyone supports the idea of voting at 16. I would hate to embarrass my former friends on this side, the Liberal Democrats, by forcing a vote, because it would be difficult for them to vote against what I know they believe in. Therefore, I will not test the opinion of the Committee. I beg leave to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Baroness Hayter of Kentish Town and Lord McNally

Wednesday 8th December 2010 Lords Chamber

[Lord McNally]

There will be other times. Now is not the right place for this debate. I understand why the issue has been raised, but I hope that the noble Lord, Lord Dubs, will not press his amendment.

[Baroness Hayter of Kentish Town]

My Lords, I was wondering whether the noble Lord was going to respond to my question on why, having put one excluded group into the referendum, the Government did not include citizens of other European Union countries.

[Lord McNally]

It is because I was intending to reply to Amendment 36A, which is in a later group, and deals particularly with that point. When we all return—I hope including the noble Baroness—we can have that debate.

Elections: Fraud

Debate between Baroness Hayter of Kentish Town and Lord McNally

Tuesday 5th October 2010 Lords Chamber

[Lord McNally]

The short answer is yes, we are so doing. However, I do not want to score party points on this. I remember asking questions from the opposition Benches before the election about the loss of confidence, particularly in postal voting. We need to follow through some of the reforms that are now in chain and to look to our own houses in terms of how we expect our members to behave. We need to be willing to push forward the process by which people respect our electoral system.

[Baroness Hayter of Kentish Town]

Given the importance of this area and the seriousness of the allegations made, will the Minister explain why the noble Baroness, Lady Warsi, is not in the House to answer the Question standing today?