Legal Aid

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 26th June 2013 Lords Chamber

[Lord McNally]

We are certainly looking across the piece and making decisions. Our current thinking is not to compete crown court advocacy and very high-cost crime cases. We have made separate proposals to reduce fees in this area, which are set out in the consultation. However, my noble friend is right. Under the current system, the most expensive single criminal legal aid case in 2010-12 cost the taxpayer £8.5 million. Under our present system, this would reduce to £6 million. The total cost to the taxpayer of just the top three cases in 2011-12 was £21 million.

[Baroness Scotland of Asthal]

My Lords, I understand that the Minister is able to disregard what 70 QCs have said in a newspaper, but will he tell the House whether the Government intend to disregard their current Attorney-General, who has expressed concerns and who remains the guardian of the public interest and the rule of law? Will they disregard him, too?

[Lord McNally]

On the contrary. The Attorney-General’s advice, which is invariably wise and measured, is taken fully into account in this consultation. I say again: we are going through a consultation and 69 QCs and 300 economists are part of this kind of exercise. Of course there is a free press, but in the end I hope that the legal profession will engage with us in a constructive dialogue. This will allow us to meet the realities of the economic situation in which we find ourselves, but also to meet the realities that were referred to about access to justice and the rule of law. These are important issues and sometimes they can be trivialised by wild statements about their implications.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012

Debate between Baroness Scotland of Asthal and Lord McNally

Tuesday 8th January 2013 Lords Chamber

[Lord McNally]

Well, it is worth reminding noble Lords that when the Legal Aid, Sentencing and Punishment of Offenders Bill was published the initial idea was that legal aid was not required in any welfare benefit cases, other than for judicial review or for a small number cases based on the Equality Act 2010. Throughout the course of the LASPO Bill the Government were urged to rethink their position on removing legal aid for onward appeals to the Upper Tribunal, which had to be on a point of law.

The Government listened to these concerns and offered concessions during the passage of the Bill to bring into the scope of legal aid advice and assistance for welfare benefit appeals on a point of law in the Upper Tribunal, Court of Appeal, Supreme Court, and representation for the welfare benefit appeals in the Court of Appeal and Supreme Court. These were concessions in which my noble friends played a considerable part in achieving. The idea of an unlistening and unfeeling Government is simply not true. If the House forces through fatal Motions, it must take the consequences.

[Baroness Scotland of Asthal]

Does the noble Lord not understand that the initial position put forward in the LASPO Bill was totally untenable? That is why it was amended. Does he not also accept that after the House has spoken on this fatal Motion, the Government are obliged to listen—and by “listen” I mean do something in response?

[Lord McNally]

The noble and learned Baroness suggests that the Government, as if in some game of poker, have to produce another offer in response to a fatal Motion. A fatal Motion is what it says—it is fatal. As I have pointed out, there was the example of the casino Bill in the previous Parliament. One of the reasons why successive Oppositions have thought long and hard about using fatal Motions is that they have implications about where and when the arguments and discussions about a Bill come to an end and how that relates to the relationship between the two Houses. Such Motions can be very toxic. I warned the House and the noble Lord, Lord Bach, of that, but he pressed ahead. A fatal Motion was passed and it has been fatal.

EU: Interpretation and Translation in Criminal Proceedings

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 9th July 2012 Lords Chamber

[Lord McNally]

No. However, there are a number of interpreters who speak more than one language. At the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter persons, which means that many of them speak two or more languages.

[Baroness Scotland of Asthal]

My Lords, will the noble Lord tell the House whether the nature, number and extent of complaints from the courts has gone up or down since the change was implemented? If it has, as we believe, gone up, what do the Government intend to do about it?

[Lord McNally]

Has it gone up since the scheme was implemented? Yes, it has, because the scheme implements a single supplier that will pay interpreters less than they were being paid on an ad hoc basis. That combination of greater discipline in where and when interpreters are hired and at what fee is not likely to be welcome to the interpreting community. That I understand. But it was the previous Administration who initiated an inquiry into the efficiency and effectiveness of the old interpreter system. We have readily acknowledged that this new system has had teething problems, but there is no ministerial interest or MoJ interest in having questions such as this time and again about performance. The supplier has contracted to a high-quality performance, and we intend to keep it to that.

Crime: Victims

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 13th June 2012 Lords Chamber

[Lord McNally]

That is exactly what we are doing. We intend to put more into victim support and to focus compensation much more effectively.

[Baroness Scotland of Asthal]

My Lords, in this new construct that the noble Lord is putting forward, how can we be assured of the quality of the support that is given to victims if it is disaggregated in the way that the Government are contemplating?

[Lord McNally]

Quality will come partly from local accountability and the fact that support will be devolved to the new police commissioners, who will have responsibility for victims. That is a very healthy development. I do not want the new police and crime commissioners to see their role as second-guessing chief constables. They should have a wider role in their responsibility for police and crime. If victims are high on their list of priorities, the democratic process will ensure service and accountability.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 25th April 2012 Lords Chamber

[Lord McNally]

But isolating one aspect and saying that if a woman goes to a refuge and cannot get in she will not get legal aid ignores the fact that I have put before the House—the whole list of options that people can turn to. I do not think that it serves the case of women subject to domestic violence to somehow suggest that the passing of this Bill will cut them off from legal aid. The fact is that we will be spending something like £120 million a year in legal aid in this area of law. As I pointed out in my opening remarks, one thing that I am most proud of about this Government is that we have put funding into domestic violence issues in a very detailed way—in a way to which the noble Lord, Lord Blair, referred.

We are talking about a very specific area of assistance in a very specific area of law, with victims seeking legal aid for private family matters. With her skills, the noble and learned Baroness, Lady Scotland, has turned this into a debate again and again on who is in favour of helping domestic violence victims, and who is against. I think that is a clever way of putting it to the House, but it is not a fair way. We have tried and listened and moved on all these areas. Long ago, the request from the Opposition was for the ACPO definition; when the ACPO definition was conceded, it was the UK Border Agency that became the mark. The fact that we have done ACPO-plus does not seem to matter. The fact that we have brought in funding for specific aid in this area does not matter. We will always find there is another bar to clear, so that as noble Lords come in asking, “What’s this about?”, it can be said to them, “It’s about voting for legal aid for those affected by domestic violence”. But legal aid is there for those affected by domestic violence. The criteria by which they qualify have been widened. We have listened to this House and acted on its advice.

On the point raised by the noble Earl, Lord Listowel, about family legal aid in children and kinship, where private family law proceedings are being taken as an alternative to public law proceedings—for example, where it is more sensible for grandparents to care for a child rather than the parents—legal aid will be available. If there is evidence of child abuse, it will also be there. I will look at the further points the noble Earl made, and if I may I will write to him, but we believe that exceptional funding will also kick in in this area.

The noble and learned Baroness, Lady Scotland, is a powerful and sometimes an emotive advocate but it is sometimes worth cutting through the emotion, and I ask the House to do that—to cut through the threat that this will cause death—and look at the facts. The fact is that this Government have listened and extended the criteria for this form of legal aid beyond what the House first asked for. This Government have put real money into real, pioneering services in terms of this terrible scourge of domestic violence. The Commons has considered this, and was right to return it to your Lordships. I believe this is the moment to ask your Lordships to accept the view of the Commons. I beg to move.

[Baroness Scotland of Asthal]

My Lords, perhaps I might say to the Minister straight away that I hope it has been clear from everything I have said that I have always believed, and still believe, that all sides of this House—and, I hope, of the other place—are of one mind in the approach that they take towards helping domestic violence victims. Nothing I have said from this Dispatch Box has undermined that. What I have been clear about is that this Government have been wrong not to widen the gateway. With respect, we have consistently argued about the time limit and the evidential criteria, right the way through, and we have not changed.

I also say gently to the Minister that in looking at reducing litigation, the one happy thing about domestic proceedings—both in private family law and in relation to domestic violence cases specifically—is that family lawyers worth their salt always appreciate that if a family has got to the stage of having to litigate, they are dealing with damage limitation and not winning or losing. That is why only about 5 per cent of the cases ever go right the way through into contested matters, so in this area of law we are not looking at cases running away and people litigating when it is unnecessary. The Government are continuing the approach that the previous Government took in advocating mediation whenever it is proper.

However, we have a difference of view. I thank the noble Lord very much for his compliments about my advocacy, but I have to tell him that this is not about advocacy. This is about truth and fact, and if I do nothing else I will always stand side by side with the victims of abuse. I believe that is where the Government should be too.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 23rd April 2012 Lords Chamber

[Lord McNally]

The noble Baroness—she is learned as well, is she not?

[Baroness Scotland of Asthal]

I am indeed learned—very learned.

[Lord McNally]

I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.

[Baroness Scotland of Asthal]

Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.

--- Later in debate ---

[Lord McNally]

My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.

As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.

[Baroness Scotland of Asthal]

I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse—that they will not be supportive. I therefore wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 5th March 2012 Lords Chamber

[Baroness Scotland of Asthal]

I thank the noble Baroness, although, of course, it is always a delight to do battle with the noble Lord across the Dispatch Box.

I shall deal with the second issue raised by the noble Lord. He referred to the noble Lord, Lord Macdonald, and spoke about what has happened in the past 10 years. I shall remind him of what the noble Lord, Lord Macdonald, said. He said:

“I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay”.—[Official Report, 18/1/12; col. 591.]

Therefore, I absolutely agree with what the noble and learned Baroness, Lady Butler-Sloss, said about the impact on children. It affects 750,000 children in our country every year, and that is a price too high to pay. We can save money, and we can also save lives. The system that we implemented, which was agreed to by all parts of the House, saved £6 for every £1 we spent, and we saved £7.5 billion a year, so what we propose in these amendments will save lives and costs. There is no reason why we should be retrogressive and go back to where we were before 1997 when the previous Government came in. I do not believe that that is really what the coalition wants. I would like to believe that it, like us, believes that we have come a long way in supporting victims, and we do not want to go back. That is why I will be seeking the opinion of the House.

[Lord McNally]

I did not want to interrupt the noble and learned Baroness’s peroration, but for the assistance of the House, if a Division is called, if Amendment 2 is carried, we do not accept that Amendments 41, 43 and 44 are consequential. However, we will not divide the House when they come up. I assume that the noble Lord, Lord Thomas, will not move Amendment 39. We wait with great anticipation. I will be moving the government amendments in the usual way. You lot have had a lot more experience at doing this than me. I hope that is of help to the House.

[Baroness Scotland of Asthal]

I thank the noble Lord for that helpful indication. I agree with him. I would argue that my amendments are consequential, but I am very grateful for his gracious indication that he will not press that point.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 18th January 2012 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, that is right. We tend to think of familial violence as violence within a family group and people living together in partnership. Regrettably, the right reverend Prelate is right in saying that age does not prohibit violence—domestic violence is no respecter of persons, irrespective of age, ethnicity, economic background or any dividing issue one can think of. Regrettably, domestic violence affects everyone, and this definition, which has been used, continues to be efficacious and would include those issues.

I should also say that of course the Government themselves have been undertaking a review of domestic violence strategy. In part of that strategy, the definition is being considered and, from what I understand of the consultation, they are seeking to widen the net and not restrict it. That is why these provisions are so concerning and—I have to say—utterly surprising. If there was one area in which I did not believe that there would be any dissent at all among the parties or any of our Benches, it would have been this. So there is deep concern and surprise but also bitter disappointment that we are having this debate.

[Lord McNally]

My Lords, the other evening I said that a smile always came to my face when the noble and learned Baroness reached the Dispatch Box. I think there is usually an exception, and that is when you are in the firing line from her formidable advocacy.

The noble and learned Baroness put her finger on it when she said that domestic violence has its impact on every index of dysfunction in our society. I think that we all accept and understand that. My noble friend Lord Macdonald made the point in acknowledging that the Government have from the very beginning, as the noble and learned Baroness said in quoting my honourable friend Jonathan Djanogly, intended to put domestic violence within scope.

This debate is about whether we have got the definition right. Obviously in discussing that, I have to take into account the comments of a former President of the Family Division, a former Director of Public Prosecutions, a former Attorney-General with considerable lateral experience as well in these matters, and even my noble friend Lord Carlile, who in this case is just an honest jobbing barrister. Obviously, if one gets that weight of evidence, we go back and look carefully at what has been said. I did not realise that this Government were so radical, as was suggested by the query of the noble Lord, Lord Clinton-Davis. Of course, I have talked to my noble friends and have tried in the course of the Bill to be available to Members on all sides of the House. However, as I said at an earlier stage, I am trying to use this Committee stage to listen and to take on board and match our aspirations for the Bill with the experience and wisdom that we receive in Committee to see whether there are areas in which we will make changes when we get to Report, or areas where we simply say to the House that we simply disagree. The spirit is one of listening.

I agree with the noble and learned Baroness that it should be a matter of cross-party co-operation to deal with this scourge of domestic violence. I visited Holloway Prison and was taken to see an ongoing programme of training and educational skills for girls. I went around talking to a number of them. The lady who showed me round suddenly said something that really chilled me. I said, “This seems to be working very well”. She said, “Yes, of course, but you know these girls are probably in the safest place that they have ever been in their lives”. So please do not think that our approach is either frivolous or without concern for the very real problems that domestic violence causes. Again, in a phrase that was used by my noble friend Lord Macdonald, it is certainly not our intention to roll back the decades of progress.

--- Later in debate ---

[Lord McNally]

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

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

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

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

[Baroness Scotland of Asthal]

Was that not a case in which the Supreme Court was being asked to determine whether a specific aspect of emotional abuse was to be included so that someone could get relief and, in so doing, referring to that aspect rather than any other? Could the noble Lord tell the Committee to which case he is referring?

[Lord McNally]

If I am misleading the Committee in any way in this exchange, I will of course write and correct it. The Supreme Court did not adopt the ACPO definition of domestic violence in the Yemshaw case. If the noble and learned Baroness questions me any more, she will go way above my pay grade in terms of the law.

[Baroness Scotland of Asthal]

One of my colleagues has just suggested that maybe the noble Lord is in need of a little legal aid.

[Lord McNally]

Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man—give him the night off.

The definition should also be seen in the light of the Bill’s structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse—as defined in that paragraph—will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address.

The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government’s response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say “hear, hear” to that.

The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances—a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment is unnecessary. This could lead to the understandable question of why we do not simply adopt the ACPO definition, given its general recognition. However, the ACPO definition is not set in legislation anywhere and is therefore not permanent, as demonstrated by the recent consultation announced by the Home Office. It could change but legislation would not change with it, at least not without subsequent primary legislation.

--- Later in debate ---

[Baroness Scotland of Asthal]

I hesitate to interrupt the noble Lord but can he help me on a point about legal aid being withdrawn from private law cases? He will know that one of the main ways of there being a finding of fact is through those private law situations. If there is an impecunious litigant, can he help me as to how that litigant—normally a woman—is going to get those findings of fact if she does not have legal aid to do so? That is one issue.

Secondly, has the noble Lord seen or read the recent survey by Women’s Aid, Rights of Women and Welsh Women’s Aid that found that the majority of respondents did not report abuse the first time it occurred but typically did so after being assaulted between three and five times? Although 99 per cent had reported at least one incident to the police and/or the police had attended an incident, only 8.3 per cent would be able to prove that they had had an ongoing criminal proceeding in the previous 12 months. There seem to be a lot of practical difficulties and I wonder whether the noble Lord can help the Committee in relation to those matters.

[Lord McNally]

The Welsh Women’s Aid report has been published very recently and we will look carefully at it. I should point out that the organisation surveyed women who are in receipt of domestic violence services rather than women who are seeking legal aid for private family matters. It is a distinction but it means that the survey may not fully square with the issues that we are looking it. We know that this latter group will often, for example, seek a domestic violence injunction at the same time as they take their private family law action, and thereby will qualify for legal aid. None the less, we will look closely at this matter and I will perhaps write to the noble and learned Baroness on her other point.

[Baroness Scotland of Asthal]

My Lords, I do not by any means want to harry the noble Lord but, given what he said about the need for flexibility and certainty, will he consider putting all the evidential issues into the schedule and providing us with an amendment we can look at? Perhaps we could have something such as an affirmative resolution in relation to these issues, which would give us flexibility—if that is what the Government think would be necessary—and clarity as to what evidence would acceptable. I am making a suggestion to the noble Lord that I will not necessarily be bound by, but I just want him to think about it.

[Lord McNally]

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

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

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

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

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

--- Later in debate ---

[Baroness Scotland of Asthal]

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

[Lord McNally]

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

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 16th January 2012 Lords Chamber

[Baroness Scotland of Asthal]

I understand that the Minister is trying to give a full response, but in his valiant reply he said that the international child abduction cases were difficult and complex and that domestic abduction cases were not. Will he think again on that issue, not least because the complexity of the issues relating to abduction is similar in both domestic and international cases? Quite often the parents are greatly distressed, very confused and in need of the quick, experienced lawyer who is able to navigate the system. Many lawyers find abduction cases difficult and international cases are not very dissimilar. Will the Minister take back to the department that the belief that domestic cases may be easier than international cases is not quite as it may think it is.

[Lord McNally]

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer’s riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.

[Baroness Scotland of Asthal]

My Lords, I make it plain to the Minister and reassure him that no one is trying to be unfair in relation to domestic violence. The noble Lord will know that the impediments that have been put in the way of someone getting legal aid for domestic violence are quite acute. They have to have had an injunction within the previous 12 months, and there either has to be a person imprisoned within 12 months or the victim has to come at the top of the scale—that is, by being at threat of death or grievous bodily harm. That is an undue hurdle to overcome.

Secondly, we know that in many private law cases there are elements of domestic violence that are not proceeded with because the parties have lawyers and come to a settlement. The noble Lord wishes to use mediation. However, the King's College figures show that the additional mediation services that we would need would cost £46 million to £48 million; the Government's figures show that we have £10 million in the budget. Therefore, it is for these reasons that we ask for the evidence for the savings that will be made, because it does not appear to be there now.

[Lord McNally]

We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.

I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords—I do not think that the noble Lord, Lord Phillips, qualifies as learned.

Community Justice Centre: North Liverpool

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 30th November 2011 Lords Chamber

[Lord McNally]

I would hope that it is the kind of more holistic inquiry that my noble friend suggests. That is what we are trying to do, obviously within budgetary constraints. We are examining various ideas and experiments in the United Kingdom, the United States and around the world, to see how best practice and best efficiency can be achieved. That is what we hope will be the outcome of this inquiry and future development of policy.

[Baroness Scotland of Asthal]

My Lords, I wonder whether the noble Lord will be able to tell us whether the learning from the North Liverpool Community Justice Centre that was spread to places like Salford has been and is going to be continued.

Cohabiting: Law Commission Report

Debate between Baroness Scotland of Asthal and Lord McNally

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

My Lords, when the previous Administration opposed my noble friend’s Private Member’s Bill on this they said that they were going to wait for research on the Scottish experience. We have looked at some of the preliminary outcomes of that research without seeing anything conclusive to persuade us to move more quickly on this issue. My noble friend makes the point, however, as do the Law Commission and many others, that there are confusions and injustices as the law stands. We have not ruled out the Law Commission’s recommendations for all time; we have simply decided that we are not going to do that during this Parliament.

[Baroness Scotland of Asthal]

My Lords, can the Minister give us a little more detail about why the Government did not find the Scottish research persuasive? Can he also say what the basis of any new review would be if the Government were not minded to take into account the very detailed work that the Law Commission was asked to undertake—it has now taken that into account—and why the Government think that the separation of the two issues is possible?

[Lord McNally]

First, the previous Administration did not proceed on this issue when they had the power to do so, although my noble friend Lord Lester had raised it. The Scottish scheme is different in various respects to the proposals for England and Wales made by the Law Commission, and the report on the Scottish scheme, which is only preliminary, acknowledged that its findings necessarily provide only an early-days impression at a time when there is relatively little reported case law under the 2000 Act, with judges and practitioners still feeling their way. The conclusion in the report is that the evidence to date in Scotland means that a similar scheme in England and Wales is unlikely to place significant additional demands on the courts system. The main message to concentrate on is that a significant period of change is due in the family justice system, which we are using to consider legislation in general. We have taken the Scottish research on board, but it is, as I say, rather narrow, very early and not enough to persuade us that we should implement the Law Commission’s recommendations now.

Justice: North Liverpool Community Justice Centre

Debate between Baroness Scotland of Asthal and Lord McNally

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

My Lords, most certainly this followed a similar experiment in the United States, although I think that I am right in saying that the experiment was not repeated across the United States. It is one of a number of pilots initiated by the previous Administration. We are trying to draw the best lessons that we can from these pilots, including lessons about reoffending and cost effectiveness. That is partly why we are conducting the review and trying to learn lessons from other pilots that are being conducted in other parts of the country.

[Baroness Scotland of Asthal]

My Lords, I declare an interest as the Minister who laid the foundation stone of the centre. Will the noble Lord take into account the cost savings that are generated by virtue of the fact that the centre produces faster results than elsewhere? The right reverend Prelate mentioned 26 days and the 82 per cent guilty rate. Will the department take into account also the experiment in Salford, which took the results of the centre and spread them more widely?

[Lord McNally]

My Lords, I will gently say, beware those who have laid foundation stones, either real or metaphorical, when you judge the efficiency and effectiveness of any project.

Police Reform and Social Responsibility Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Thursday 16th June 2011 Lords Chamber

[Baroness Scotland of Asthal]

No, my Lords, certainly not. I was seeking to relieve the Committee of the burden of listening to me for more than was absolutely necessary, bearing in mind that we are now at 9.19 pm and the Government have yet to respond. Of course, it is for the Government to deal with these matters. I simply wanted to make plain that we on this side would support the analysis made by the noble Lords, Lord Carlile and Lord Pannick, and my noble and learned friend Lord Goldsmith. I thought that that would be the fastest way. I am sure that we can return to this on Report. If the Committee would love to hear from me on that basis, I am sure that I could entertain your Lordships for some considerable time. But, at this time of night, something told me that the Committee would not thank me. For that reason, I have curtailed my remarks. I am sure that the noble Lord, Lord McNally, need have no such restraint.

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

My Lords, sometimes the House throws up, well outside the usual hours of attention, debates of immense importance. There is no doubt that this debate will be read and studied outside the confines of the House to great advantage, because it was extremely thorough, with arguments deployed on both sides with great passion but also, in the tradition of the House, with great courtesy. As one of the non-lawyers participating, I very much benefited from listening to the learned side of the House dealing with matters of law.

Of course, as with all these things, it is a matter of judgment. We get advice from many quarters. It is not a matter of setting the view of the Joint Committee on Human Rights at nil; our judgment is carefully considered. However, as the two former Attorneys-General pointed out, somebody then has to make a judgment. The judgment that we have made is that the purpose of Clause 154 is to ensure that in respect of offences over which the United Kingdom has asserted universal jurisdiction, an arrest warrant is issued on the application of a private prosecution only where there is a real prospect of a viable prosecution. This outcome is achieved by requiring the consent of the Director of Public Prosecutions before the warrant can be issued. The Government have decided that this is the best way forward.

The detail of this debate indicates that more than one opinion can be honestly held, but nothing that I have heard today has dissuaded me from thinking that this is the right way forward. However, we will return to this on Report. I hope that some issues were clarified in the debate. Certainly I will look at the resource issue that was raised by the noble and learned Lord, Lord Goldsmith, the noble Lord, Lord Carlile, and the noble and learned Baroness, Lady Scotland, but I am a little worried about the answer that I will be given—[Interruption.] It is always worrying when there are interventions. It is bad enough when the noble and learned Lord, Lord Mackay of Clashfern, intervenes, but when the thunderous intervention seems to come from an even higher authority, one gets really worried.

I pay tribute to the previous Government on their record on universal jurisdiction. The two officeholders responsible can take rightful pride in it. I also put on record the confidence of this Government in the independence and abilities of the present DPP. The way that the noble Lord, Lord Campbell-Savours, introduced the debate set a tone that encouraged the exchange of honest and informed opinions. Although I will ask noble Lords, given the nature of the Committee stage, not to press their amendments, it is clear that the debate will influence further discussions on how we go forward.

I will deal with some of the issues. The noble Baroness, Lady Tonge, finished her remarks by expressing her concern that there would be unnecessary delay. That concern was also expressed by the noble Baroness, Lady D’Souza. It was answered very clearly by the noble Lords, Lord Carlisle and Lord Pannick. In some ways, I shall try to shorten my remarks because I do not know whether the noble Lord, Lord Pannick, is after my job, but his speech answered many of the questions raised, including on delay. The DPP has made it clear that anyone who wants to pursue a crime of universal jurisdiction should engage very early with him. Giving evidence, he said:

“They should come to us with whatever evidence they have, and we will undertake to look at it and to advise”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 124]

We have already heard evidence about the amount of resources and the 24/7 nature of that coverage.

It is not a matter of trusting the judges to do their job. The noble and learned Lord, Lord Goldsmith, put the problem far better. The actual case put to the judge is not the one that causes the problem in that, as the noble and learned Lord rightly pointed out, it may involve somebody being detained on very spurious grounds. We are all experienced politicians and we have seen examples. The gain for those wanting to raise these issues is not in the trial or the verdict but in the publicity gained by getting the individual into the situation in the first place. As the noble Lord, Lord Phillips, and the noble Baroness, Lady Tonge, suggested, it is not in any way that we wish to take away the right of the private citizen to pursue matters of universal jurisdiction, but simply that we believe that the present situation is unsatisfactory and extremely difficult in terms of law. I know that there have been very few cases but, as the noble Baroness, Lady Ramsay, pointed out and the noble and learned Baroness, Lady Scotland, confirmed, the previous Government were looking at this issue and feared, as do we, that there is a risk that the present weakness of our system could be exploited at a time when we would want to use all our influence.

One accepts the point raised by the noble Baroness, Lady D’Souza, that there may be a chill factor in asking for that hurdle to be cleared. As the noble Lord, Lord Pannick, argued, there may be a deterrence factor. We have had to weigh those things, and we have come down in favour of trying to remove that deterrence factor while not removing the line to universal jurisdiction. We are asking a non-political officer to look at the issue and asking those wishing to take it forward to clear what is in many ways a very modest hurdle if the situation is as clear as they would claim. There is no point in allowing the court to issue a warrant in a case where the director has concluded that there is no realistic prospect of a viable prosecution. That is why we believe that the first three amendments cast the Director of Public Prosecutions in an advisory role to the court, which is not welcome.

Amendment 245 requires the court to apply to the DPP for advice on the advisability of granting a warrant or summons. It goes on to make it clear that such a warrant or summons cannot be issued without taking into account the DPP’s advice. As was acknowledged by those who tabled the other amendments, the thrust of them is to move from giving responsibility to the DPP to putting him in an advisory role. The DPP was clear in his evidence to the Public Bill Committee about the degree of detail in which applications for consent are examined and the specialist resources that are available for him in doing so. If the DPP concludes that the tests under the code for the Crown prosecutors are not met, it is difficult to see what purpose will be served by the court nevertheless issuing a warrant or why it would wish to do so.

Amendment 245AA is obviously intended to place in the Bill the test used by the DPP in considering whether to grant this consent. I will not go into great detail at this point because I would be afraid of rekindling the fire between the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Thomas. But I ask readers of Hansard to turn to those exchanges to judge again whether we have got the balance right. I think that we have. I am not persuaded that it is necessary to embody the guidance in the clause. The tests are of general application but they are not set out in statute and it would be strange to do so in this context.

The amendment in the name of my noble friend Lord Carlile is designed to monitor the arrangements for investigating and prosecuting certain grave international offences and for assisting the International Criminal Court. I understand the interest in reviewing the effectiveness of these arrangements but I am not sure that what is proposed would be helpful. Prosecutions for one of these exceptionally grave offences are rare and when one takes place it is newsworthy enough for a reporting requirement to be superfluous. Investigations that do not end in prosecution are a different matter and reporting on them would not be straightforward.

As the exclusions built in the amendment recognise, it would not be right to disclose personal details, but without such details the information is unlikely to be meaningful. The information that the report provided would therefore be so incomplete as to make it effectively useless. What would be of value would be for the Director of Public Prosecutions to monitor any case for which his consent is sought under Clause 154, which applies to offences that to some extent overlap with those listed in this amendment, and to publish the number of cases and the outcome. I understand that the director would be content to carry this out.

The amendment includes a requirement to report on the assistance of the International Criminal Court. The Foreign and Commonwealth Office produces an annual human rights command paper, which includes details of the UK policy on criminal justice and the rule of law. It is subject to the scrutiny of the Foreign Affairs Committee. The command paper makes clear the UK’s commitment to the principle that there should be no impunity for the most serious international crimes and that we should provide details of the practical support which we have provided to all six existing international criminal tribunals. The paper does not currently provide the level of detail which the amendment would require but the Foreign and Commonwealth Office will give careful consideration to extending it to include more specific details of assistance provided as envisaged by this amendment.

I would ask the noble Lord, Lord Carlile, and the noble Baroness, Lady Tonge, when they have time to look at those two responses, to see whether they are satisfactory. I will be happy to meet with them on these points, but I hope that they go a long way to meet what they say. If not, of course, we can return to this on Report or clarify it further in discussions. I invite the noble Lord to withdraw his amendment, but with real and personal thanks both for the spirit and the level of engagement in this debate which I hope will help to reassure people about where we are coming from. I think that both in this House and in this Parliament there is cross-party commitment to pursuing those who perpetrate horrific crimes that are committed all over the world and which were so graphically described by my noble friend Lady Tonge. As a country, we have been for many years a leader in this, and we will continue to be.

I can make a personal commitment. At the Ministry of Justice and within this Government, I am the Minister responsible for civil liberties and human rights. I would not stand at the Dispatch Box advocating this clause if I did not believe that it was absolutely foursquare with our continuing full commitment to the universal jurisdiction. It is not a step towards political control. It gives us a law that is fit for purpose, a very noble purpose, if we all continue to pursue it.

Public Bodies Bill [HL]

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 28th March 2011 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, I suppose that I, too, should declare an interest as someone who has practised in the field of family law dealing with children for the past 34 years and who has had the privilege of being one of Her Majesty’s deputy High Court judges of the Family Division.

On the last occasion that we met to discuss this issue, the noble Lord, Lord McNally, told me that I had been shooting at an open goal. Well, the goal has not got any narrower. However, if I may respectfully say so, I think that the nature of this debate has been slightly different from that of the debate that we had last time. There is now a degree of sadness and almost disbelief that there has been no material change in the approach taken by the Government. At the end of Committee, the noble Lord, Lord McNally, said, in essence, “Give me time. Don’t shoot me today. Postpone the execution until Report. Give me time to think again and to persuade my Government”. The noble Lord, Lord Warner, with the generosity of spirit for which he is renowned, did so; as noble Lords will remember, he said that recidivism could be addressed and that there was still time for repentance. However, there always comes a time when repentance appears not to have transpired and the judge has to make a decision.

The House has now spoken twice. It is important that in this debate there was not one dissenting voice urging on the Minister the wisdom of going forward with the current plan. If I may respectfully say so, I think that it was poignant to hear the noble and learned Lord, Lord Woolf, say that this was—he used a strong word—“sacrilege”. Why is that? Those who spoke on the last occasion and who have spoken today struggled and suffered in order, together with the young people, to try to create a system that is able to deliver change in a material way. The system that we had before the Youth Justice Board was agreed by all not to have worked. It was expensive and dysfunctional and it produced poor outcomes. For all its flaws, the Youth Justice Board has created something of real merit and worth.

When we talk about costs, we need to think about the real cost of the demolition of the Youth Justice Board. It does not come in money; it comes in the pain, injury and suffering that will flow not to us but to the young people who have been so advantaged by the board’s work. As the noble Lord, Lord Elton, said so eloquently, it comes in the pain that will be inflicted on us all if vulnerable young people and their dysfunction are not dealt with robustly, carefully and successfully.

This House has a choice. There is a moment when we get to say to the Government and to the other place, “This far and no further”. I repeat what many have said. This is not an issue over which the House has divided on political lines. Every person who has spoken has done so with the same voice, because this House cares passionately about young people and about reducing the pain that is caused to them. We should look at the YJB’s work not just in terms of the reduction of recidivism among young people. We just need to glance at the fact that there has already been an encouraging sign that the reduction in juvenile crime is effecting a reduction in the reoffending figures that we now see for young people between 18 and 20 and between 20 and 24. The noble Lord knows well that 13 to 24 is the most active age group for criminal behaviour. Therefore, reducing the number of those who enter the criminal justice system, and then reducing reoffending, is very significant.

There is evidence that accountability from a ministerial point of view is delivered very successfully by the method that we currently have. On the previous occasion, the noble Viscount, Lord Eccles, and the noble Lord, Lord Newton, made that point so powerfully; it is not about removing ministerial accountability because that ministerial accountability currently exists. We need strong, national, co-ordinated accountability through a dedicated body, and that dedicated body is the Youth Justice Board. We know how difficult it is to create a piece of machinery that works. The Youth Justice Board works. It works in its current form. The opinion of the House is clearly that it should remain in its current form. An executive agency would be the least bad option if it has to go, but it is certainly not the preferred option.

I gain comfort from what the noble Viscount, Lord Eccles, has said. We need to understand him as saying: “If we lose today, we will come back and defeat you—we hope—on another day, but through a statutory instrument”. I would not like to put the House through that pain. I invite the House to vote on this issue, if my noble friend presses his amendment, and say decisively that it does not agree with the removal of the YJB. If the Government need real encouragement to think again, we should ask them to do so by voting in favour of the amendment, as we on these Benches will do in, I hope, great numbers.

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

My Lords, I thought of leaving a long pause to wait for one of my supporters to stand up and make his or her speech. At the end of my remarks I will not appeal to the noble Lord, Lord Warner, not to test the opinion of the House. I did that in Committee because I thought that it would be useful to allow my colleagues to read his speech before coming to a conclusion. Rather than just reading the speech, perhaps seeing the result of the vote—whichever way it goes—will also be an opportunity for them to do so.

At the start of the remarks of the noble and learned Baroness, Lady Scotland, she echoed the noble and learned Lord, Lord Woolf. Using the word that they both used, the House is being asked to vote on sacrilege. Essentially, that is the case for the prosecution: we are about to destroy something of real merit. That is certainly not the intention of the Government. We do not intend to dismantle the youth justice system. We want to build on what has been achieved over the past 10 years. I agree that this debate has been dominated by well informed, experienced speakers who care passionately about youth justice. My experience in my department is of finding similar qualities in the people dealing with this. It is not a matter of uncaring bureaucrats and caring Peers; those qualities exist across the board.

The noble Lord, Lord Warner, suggested that what has happened sounds like an episode of “Just William”. Unlike Violet Elizabeth Bott, I promise that I will not “scweam and scweam and scweam” if things go wrong. As with earlier debates, I will report back the result of this one to colleagues. However, I will not hold noble Lords in suspense: my brief does not allow me to make any concessions today.

The noble Lord, Lord Ramsbotham, slightly overeggs the pudding in that the separation between strategic and operational matters is not as clear as he made out. I think that the noble Viscount, Lord Eccles, made that point. There is real benefit in the department and the Minister providing strategic leadership while retaining the real success of the MoJ—the holistic, local response to youth offending. In referring to the situation in young offender institutions and advocacy, the noble Earl, Lord Listowel, may have been trying to return to a matter raised in Committee. We recognise that advocacy and social work provision in youth offender institutions is important. There are legal responsibilities on local authorities and prison governors to safeguard and promote the welfare of young people in custody but we realise that responsibility for funding these services is complex. We have been working on a solution and I expect that I and my colleague, Mr Crispin Blunt, will receive official advice on funding soon. I will write to the noble Lord later this week or next week, putting forward solutions on that point, which he raised in Committee.

I echo the noble Earl’s tribute to Frances Done and her chief executive. They have behaved exemplarily throughout in steering the organisation through a period of uncertainty while maintaining the high quality of service which we expect. It is interesting that the noble Earl mentioned the need for local authority initiative. The thrust of the policy the department is putting forward in these new arrangements is that we keep the best of the localism of the youth justice system but encourage local authority initiative and co-operation even further.

I suggest to the noble and learned Lord, Lord Woolf, that undoubtedly the YJB has had an impact but that the holistic approach of the youth offending teams may best explain the success gained during the past 10 years, which has been mentioned on a number of occasions. I emphasise again that we are not going to abandon the lessons learnt in the past 10 years but will build on them. It is worth pointing out that youth policy is not the only policy that the MoJ looks after. I think that the noble Baroness, Lady Linklater, and the noble Lord, Lord Beecham, mentioned this. One might equally ask whether one needs a similar arm’s-length body for women, the mentally ill or an educational training body. I see lots of nods across the House. Perhaps that is where we have an ideological difference—“When in doubt set up an arm’s-length body, or, if not, a tsar”; that was very much part of another age. It is worth pointing out that Ministers and departments can be responsible for distinctive policies that they can pursue successfully, without necessarily setting up an external body to help them to do that.

Justice: Judicial Appointments

Debate between Baroness Scotland of Asthal and Lord McNally

Thursday 17th March 2011 Lords Chamber

[Lord McNally]

I think that targetry would be the wrong approach but it is worth remembering the figures. Just over 20 per cent of our judges are women. Even in the magistracy under 8 per cent represent black and ethnic minorities. I understand selection on merit but there are still signs of old selection prejudices that produce these appalling figures. They have to be broken into.

[Baroness Scotland of Asthal]

My Lords, I declare an interest as a deputy High Court judge of the Family Division. The noble Lord will know that that appointment was a very long time ago and that the opportunity to be a deputy is very important. Will the noble Lord tell me how many other ethnic minority women of some quality are now appointed in relation to the deputy’s role?

[Lord McNally]

My Lords, I do not have the figures here, but I will write to the noble and learned Baroness. Let me say this about quality. This is not an attack on our judiciary. One of my other responsibilities is as deputy to the Lord Chancellor in his international role. Time and time again, we find ourselves in areas where the judiciary is corrupt and the justice system deeply flawed. I pay tribute to the quality of our judiciary, but I must say that, when the figures show that it is 80 per cent male, we are wasting half our talent. Other professions have shown the ability to change. It is time for the legal profession to change as well.

Parliamentary Voting System and Constituencies Bill

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 24th January 2011 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, I rise to answer for the Opposition, and noble Lords will know that this is my first venture into this Bill. We have had a very thoughtful debate, and I hope that the noble Lord, Lord McNally, will not think that the interventions have in any way been cynical or lacking in appreciation for the political niceties. It is of course my noble friend Lord Lipsey who has sallied forth to save what has been quintessentially a Liberal Democrat seat now for some time.

We have had some powerful arguments. The most important thing that has come out is the need for flexibility: a more flexible approach than the rigidity which the Bill demands. We heard some powerful descriptions from my noble friends Lord Lipsey, Lord Touhig and Lady Hayter, the noble Baroness, Lady Finlay, and the noble Lord, Lord Elystan-Morgan, about the nature and culture of the area with which we are dealing.

My noble friend’s amendment stipulates that no constituency shall have an area greater than that of the present parliamentary constituency of Brecon and Radnor. I understand why the noble Lord, Lord Tyler, says that that surely cannot be. Perhaps I may mention as gently as I can why I disagree with him. Brecon and Radnor is one example, but an important one. The current MP, Roger Williams, a notable Liberal Democrat, followed the much loved and much lamented Lord Livsey, who represented that constituency so well. It is important to recognise that they represented England and Wales’s largest constituency. For those who live there, as has been clearly outlined, there are real difficulties in seeing their constituency MP because of the distance. It is also the most rural constituency in Wales and the 30th most sparsely populated in the whole of the United Kingdom. I am reliably informed that it would apparently be possible to fit Wales’s smallest constituency, which by geographical area is Cardiff Central, into Brecon and Radnor 176 times over. A noble Lord said from a sedentary position, “And the buses”.

Transport is a very big issue in Brecon and Radnor, and traversing its area can be extremely difficult and lead to expensive fuel bills. My noble friend Lord Lipsey said that the size of the constituency is 3,014 square kilometres. I have in my brief 3,007. I am sure that noble Lords who come from Wales will tell us who is correct. However, it is a large constituency with many difficulties. For this reason we believe that the geographical features that are particular to Brecon and Radnor should be considered by the Boundary Commission for Wales when drawing up the constituency boundaries. However, this is not necessarily best achieved by simply imposing a size quota.

Democratic Audit recommends that some small leeway might be allowed for the construction of constituencies in the Welsh valleys. We on this side of the House very much support that, although I absolutely understand what the noble Lord, Lord Elystan-Morgan said—we will talk about Wales in greater detail in due course. This debate has been short and to the point. Crucially, we argue that a more flexible approach to the new rules for boundary redesign in general would enable such consideration. I hope that the Minister, when he answers, will be kind enough to say that he will take back the salient points that have been made in this debate and consider very seriously indeed whether the context in which they are put will enable him to allow the provisions to be a little more flexible than they have appeared to be to date to Members of this House.

[Lord McNally]

My Lords, the first thing I would say about this debate is that it emphasises once again that not only the inner city seats have particular problems. Those on the Benches opposite tack from one side to another to suit whatever special argument they seem to be putting. I remember last week that we were urged to make all kinds of special arrangements for the inner city seats, because of the heavy case load, the large number of unregistered constituents and the like. Now we hear of the problems of constituencies such as Brecon and Radnor. I come back to a point I have made before; every Member of Parliament has particular issues and problems that affect their workload but, in the main, it evens out. It is not useful to keep making special pleadings that simply reflect the diversity of our country and the responsibilities that face each Member of Parliament.

--- Later in debate ---

[Lord McNally]

Of course one cannot argue that someone who lives in north Kensington has more difficulty than someone living in a rural constituency. However, this applies in many constituencies. Although it is quite right that the question of travel should be brought up, I know well that Members of all parties who have represented large constituencies have shown tremendous diligence in making sure that they get around their constituencies and are accessible for surgeries and so on—and, of course, galloping down the line towards us is a whole range of new technologies that are transforming the relationship between Members and their constituents. However, I hear what has been said.

Down the Corridor, Members have regular contact and discussions online with constituents, which is a healthy development in our democracy. As my noble friend Lord Tyler pointed out, the amendment would adjust the maximum geographical size of any constituency to the size of Brecon and Radnor. Under the Bill the maximum area set is, as it happens, that of Ross, Skye and Lochaber. If the amendment were carried, more than 10 constituencies would be out of line with the UK electoral quota and that would result in too many exceptions to the principle of fairness through equally weighted votes across the country. The amendment departs from the fundamental principle of the Bill that a vote, wherever it is cast in the UK, should have broadly equal weight. For that reason I ask the noble Lord to withdraw the amendment.

[Baroness Scotland of Asthal]

Does the Minister accept that rule 5 is subject to rule 2 and that rule 2 provides the primacy? When it comes to flexibility and interpretation from the commission, does the noble Lord accept that that would be very limited indeed? The whole point of the amendments is to give the commission the sort of real flexibility that it needs to meet some of the difficult issues with which we are now dealing. I invite the noble Lord to look again at rule 2 because it seems to set the primary course which the commission would have to follow. Rule 5(3) states that this rule has effect subject to rule 2.

[Lord McNally]

I do not resile from that. The Bill aims to provide fair votes—votes of equal weight in fairly drawn constituencies. I am not giving way again. The flexibility that the Opposition seek is the flexibility to undermine the Bill and we are not conceding.

Legal Aid: Family Courts

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 13th December 2010 Lords Chamber

[Lord McNally]

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

[Baroness Scotland of Asthal]

My Lords, I declare an interest as a deputy High Court judge of the Family Division and chair of the All-Party Group on Domestic and Sexual Violence.

Does the Minister accept that, in cases of domestic violence, mediation is not appropriate and that the unequal nature of such relationships demands that there should be proper financial support for the litigants in those cases? Bearing that in mind, will he give an assurance that domestic violence cases will still receive appropriate public support?

[Lord McNally]

Domestic violence cases will get appropriate public support. In the arrangements for legal aid, a separate fund can be granted for special cases. Where legal aid falls outside the newly defined scope, I suggest that many of the areas suggested by the noble and learned Baroness will be good cases for special treatment.

Youth Justice Board

Debate between Baroness Scotland of Asthal and Lord McNally

Wednesday 8th December 2010 Lords Chamber

[Lord McNally]

I would love to say that the relevant Minister would be Mr X or Mr Y, or even Lord B, but the appropriate time for that is when the legislation has gone through. It is no use the Front Bench clucking—they know darn well that this process has to be gone through. There are transitional arrangements to be made, and at the appropriate time, the appropriate line of responsibility will be defined very clearly. I can assure noble Lords of that.

[Baroness Scotland of Asthal]

My Lords, is not the noble Lord rather dismayed by his own answer? Cannot he tell us which officeholder will be responsible for this role? The noble Lord knows perfectly well that, before we introduced the Youth Justice Board, the criminal justice system’s response to young people was in a parlous state. The noble Lord is quite right to say that the Youth Justice Board has been a total success, as it has reduced the level of young people coming into the criminal justice system. The board does exactly what the Lord Chancellor wants in reducing prisoner numbers. Can the noble Lord tell us, first, why the board is being changed and, secondly, how it will be changed for the better?

[Lord McNally]

That is extraordinary from someone who has held the position that the noble and learned Baroness has held. The straight answer is that, because the board is coming into the Ministry of Justice, the responsibility will be that of the Lord Chancellor and Secretary of State for Justice. That is very clear. However, within the Ministry of Justice, we are in a transition period. We are going through this along with the Youth Justice Board, which is co-operating very effectively in the transition. When those lines of responsibility are cleared and when the legislation has cleared Parliament, we will be able to go ahead with implementation and those lines will be clear. As I said, I acknowledge that the system of youth justice has moved from being a Cinderella organisation in the 1990s to one that has been extremely effective, but we are now removing that layer of national control to ensure that there is proper, local responsibility by devolving responsibility to youth offending teams. That was also part of the initial plans that the previous Government put in place.

Supreme Court: Retirement Age

Debate between Baroness Scotland of Asthal and Lord McNally

Monday 12th July 2010 Lords Chamber

[Lord McNally]

These are very powerful arguments, which may be why the Lord Chancellor is looking at the matter. However, as I said, in parallel with the concern to retain the talent of the Supreme Court, there is, or should be, a similar concern to ensure that our Supreme Court better reflects our society in the 21st century.

[Baroness Scotland of Asthal]

Bearing in mind the comment just made by the noble Lord that breadth is important, and given that so many women have to take time out of their career, does he agree that one of the ways of ensuring that breadth is by identifying talent—not age or gender—as the criterion which should determine appointment to and retention of these posts?

[Lord McNally]

I treat that intervention with all the respect it deserves—and in that I do not make a joke