Community Legal Service (Funding) (Amendment No. 2) Order 2011

Lord Bach Excerpts

Wednesday 26th October 2011 Lords Chamber

Moved By

[Lord Bach]

That a Humble Address be presented to Her Majesty praying that the Community Legal Service (Funding) (Amendment No. 2) Order 2011 (SI 2011/2066), laid before the House on 24 August, be annulled, on the grounds that the reduction in civil standard and graduated fees for Legal Help and Help at Court will seriously undermine access to justice because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.

[Lord Bach]

My Lords, in moving this Motion, I make it crystal clear that we on this side believe that there must be cuts to the legal aid budget. Over the past 30 years or so, perhaps until a few years ago, the amount spent on legal aid went up a great deal, year on year, and that was particularly true in the criminal legal aid field until the amount spent on criminal legal aid, compared with civil legal aid, was totally out of kilter.

As part of the necessary cuts, we, when in Government, took action to reduce legal aid spending and I do not apologise for that. Almost the last act we took in government, before the general election of 2010 was called, was to cut criminal legal aid advocates’ fees in the higher courts over a three-year period. It was not popular but it was necessary. Incidentally, that gives the lie to the present Government’s claim that we, the previous Government, were not prepared to tackle the deficit. If we had won that election, we would have cut further. My personal view is that there are large savings indeed to be made in our whole criminal justice system. In any event, we had published a White Paper, Restructuring the Delivery of Criminal Defence Services, which, if followed through, would have made considerable savings.

However, there are two considerable differences that exist between our proposals and those of the Government. First, Her Majesty’s Government are intent on cutting legal aid much too far and much too fast. They have not given any—certainly not enough—thought to the consequences of their policies, either in human or in financial terms. That leads me on to my second point. One of the areas in which they have chosen to axe legal aid, take it out of scope altogether and make savings in fees, is precisely the wrong area of law. They intend to remove welfare benefits advice and representation at all levels, including up to the Supreme Court; employment advice; much housing advice and even more debt advice; and some community care advice and education advice—in other words, advice to the poor and the vulnerable. They intend to save the sum of about £50 million per year through those cuts. Today, of course, we are not strictly debating the rights and wrongs of such an approach, but we shall be able to do that in short order when the Bill, currently in another place, comes to this House.

Tonight we are debating an order that in one fell swoop cuts 10 per cent from all—I repeat, all—civil fees, including family fees. To describe it as a rough and ready figure would be a gross understatement. It is a crude and ill thought-out measure with no evidential justification whatever. Although I am particularly concerned with the 10 per cent cuts to social welfare and community lawyers, the lowest paid of all the lawyers who do civil and family work, I acknowledge the powerful case put forward by other civil and family lawyers to me as a result of my Motion being tabled. I thank all those who have made their case. There may well be champions for them tonight, although I know that because of the lateness of the hour, various noble Lords whose contributions would have been very welcome on all sides have not been able to stay.

Interestingly, there are no comparable cuts on the criminal side—for example, in the sister order that accompanies this particular statutory instrument. This shows that the Government are quite ruthless when it comes to civil and family legal aid and as soft as butter when it comes to criminal legal aid. It is as though they have no sense at all of the fantastic value social welfare law has in our society, allowing, at comparatively cheap costs, early legal advice for many of those who could not possibly afford to get it, with the result that issues are solved and the courts are not full of hopeless cases and litigants in person. Noble Lords will perhaps have seen the concern of some Justices of the Supreme Court in the newspapers this morning. For some reason, the Government are determined to decimate social welfare law and drive out those hard-working, dedicated and, I would argue, poorly paid lawyers who practise in this field.

Who are these lawyers? They are often the not-for-profit sector; they work in law centres, citizens advice bureaux and other advice centres. Some are solicitors and barristers in private practice. Many, wherever they come from, sacrifice more lucrative legal careers in order to practise this type of law. If they do not practise it, who will?

Their fees are fixed fees brought in in October 2007 and raised by 2 per cent in 2008 but untouched since then. They are not overgenerous. We as a Government brought in the fixed fee and it undoubtedly caused problems in itself. We set up a study with many experts from this area of law to look into those problems, and we produced a document entitled a Study of Legal Advice at Local Level in order to attempt to tackle them. We as a Government refused at any time, and particularly during the recession, to cut legal aid spending on social welfare law. We increased it significantly from £151 million in 2007-08 to £208.4 million in our last year, 2009-10. We increased eligibility by 5 per cent, bringing in 750,000 more people, and increased the number of new matter starts. I am proud of what we did.

The proposed fees are set out in Table 1 of the order, to be found on page 4. These cases often take many hours’ work. They involve face-to-face contact. Often the lawyer, having seen the client, has to speak to third parties in order to resolve the problem. They are by no stretch of the imagination well paid. There is an exceptional threshold, but a case has to be very long indeed and very complicated to come into that category.

There are currently 52 law centres in England and Wales. They are not profit-making. They have had to make efficiency savings with the introduction of the fixed-fee system. Many rely heavily for the excellent work that they do on legal aid. Eight generate over 70 per cent of their income through legal aid contracts. None of these law centres has a 10 per cent surplus and at present they monitor cash flow on a weekly basis. There is no fat to them at all. All eight are at risk of closure. Four centres are particularly vulnerable, two in London and two outside the capital. Eight hundred thousand pounds is immediately to be taken from law centres’ funding overall by the 10 per cent cut. In the medium term, the combined effect of the 10 per cent cut plus the proposed scope cuts is that £8 million out of the £9 million in legal aid contracts that law centres enjoy will disappear. Eighteen law centres out of 52 will just not be viable—it may be more. Where, I ask, will people go to in order to get their legal issues sorted out?

I could make the same points about CABs, the citizens advice bureaux, which have a very high reputation, as do law centres, in Parliament and outside. Obviously CABs do not rely so heavily on legal aid, but many still rely on it, and at a time when local authority funding is, frankly, declining, CABs will also close as a consequence of this order. Noble Lords will remember that a few months ago there was news from Birmingham about the state of CABs in Britain’s second largest city.

Private sector firms that do this work also work on the same legal aid rates. All day long I have been receiving e-mails from solicitors who do this work. Sometimes, of course, other parts of these firms subsidise the social welfare law part of a firm, but I have been told that the amount of money that legal aid lawyers of many years’ standing get per year would make an extremely interesting database. It is much less, of course, than that of a solicitor who does not do that work and compares extremely badly with other professionals—very badly indeed. Those who practise in this field and who do this absolutely invaluable work do not expect enormous rewards, but nor do they expect to be penalised even further.

I end with the story of Law For All. Law for All was in west London, and many noble Lords may have heard of it. It was quite a large organisation. It provided legal help in the fields of debt, employment, family law, housing and welfare benefits. It also provided representation for many people over many years. However, it has now been forced to close down in anticipation of the reduction in the fixed fee and, of course, the fact that 90 per cent of their work is being taken out of scope in the Bill that is currently going through Parliament. This is a tragedy for local people, who received legal help in 1,500 cases last year. The local authority in that part of west London is generous, but the Government’s proposals have meant that Law For All has closed its doors. I have spoken this afternoon to the chief executive —or should I say ex-chief executive?—who confirmed that the 10 per cent cut that we are debating tonight and the taking out of scope have driven it to close.

It is important to point out that even where the area of social welfare law is not to be taken out of scope altogether, such as in some housing cases and some debt cases connected with housing cases, the order that we are debating tonight means that the continuing work in housing, for example, will be reduced by 10 per cent. All housing work that stays in scope will be affected.

Noble Lords may want to know how much this will save. It is estimated that the saving from the whole order, including the 10 per cent cut in civil and family legal aid across the board, is worth £45 million. The cuts as they affect social welfare law fees are all of £5 million. That is a figure that the Legal Action Group has confirmed. Of course it is a rough figure but it shows just how much or, rather, how little will be saved by this order. Saving £5 million in fees when Her Majesty's Government intend to spend £250 million on ensuring that there are weekly rather than fortnightly collections of rubbish is absolute nonsense. Have we not got our priorities entirely wrong?

In the Hansard published today, the Minister has answered a Question that I asked him. The information is that:

“In cash terms, spending on legal aid in 2010-11 was … some £66 million (3 per cent) below provision”.—[Official Report, 25/10/11; col. WA 137.]

Yet the aim is to save £5 million by cutting these fees by 10 per cent.

I am not allowed to seek to amend this order and I therefore have to pray against it as a whole. Whether I vote against it tonight will depend on what other noble Lords say in the course of the debate that I hope will follow and, of course, particularly on what the Minister says. I beg to move.

[Baroness Deech]

My Lords, I declare an interest as chairman of the Bar Standards Board. The Bar Standards Board is the regulatory arm of the Bar Council, not the representative one, and I have no direct concern with the pay that barristers earn. My job is to further the objectives laid down for the Bar in the Legal Service Act 2007. There are eight in Section 1, including protecting and promoting the public interest, improving access to justice and encouraging an independent, strong, diverse and effective legal profession. What I have to say tonight when I encourage your Lordships to annul this order is based entirely on the application of those objectives in the regulation of the education and working lives of barristers.

Last Sunday, an advertisement appeared in the Sunday Times headed,

“Helping the most vulnerable in Society”.

It was for a new chief executive of the Legal Services Commission, which hands out legal aid. I quote from the ad:

“Our role is to ensure through our providers that independent, high-quality legal advice and representation is available to vulnerable people who cannot afford it themselves. We enable people to protect their rights and defend their interests”.

This order flies in the face of the aspiration in that advertisement and of the achievements of the objectives in the Legal Services Act and the profession.

Let me turn first to the effect it will have on women and black and ethnic minority barristers. This is a central plank of the work that we do at the Bar Standards Board in encouraging and retaining those very barristers. The effect of this order is to cut the rates payable in family advocacy by 10 per cent. It will be felt hardest by women and black and ethnic minority barristers, who are disproportionately represented in dependence on legal aid, while white men are the least dependent sector. There has been considerable government pressure to open up the legal profession still more to entrants from all backgrounds, albeit that it is already a very diverse profession.

Alan Milburn’s report of 2009 singled out the legal profession in his survey of social mobility, even though the Bar and solicitors go to enormous lengths to explain and reach out to young people all over the country. The Bar has a record to be proud of, with over 15 per cent of pupillages going to black and ethnic minority students in a very competitive market. The cuts in fees in this order undo all that work, and make the Government appear two-faced.

Sixty per cent of the family Bar are women, and they do 66 per cent of legally aided children work. Half the family Bar relies on public funds for more than 60 per cent of its turnover. From their gross earnings, modest though they are, barristers have to pay overheads to chambers and clerks—typically 20 per cent—and in addition meet their own pensions, illness and professional insurance cover and expenses. The King’s College London survey of barristers in 2008-09 indicated that 80 per cent of them intended to abandon legally aided public work. This generation of young people have university tuition debts and huge fees at Bar school, and the modest but reliable income that was once their support in the early years at the Bar is now to diminish to such an extent that they cannot earn a living. There is no point in the great efforts put into outreach in this situation.

It continues on into the judiciary. The noble Baroness, Lady Neuberger, reported on judicial diversity in 2010. A less diverse profession means a less diverse judiciary, and fewer women judges. The diminution of the profession also means more litigants in person taking up more court time, not less, with problems being stored for several years down the line because they cannot be settled in court in a proper and timely way.

As with other demanding professions, women are being lost to the Bar after five to 10 years in practice, because of the costs of childcare. It is unaffordable and will be even more so. Twice as many women leave the Bar as do men for that reason. The cut in fees in this order will weaken retention. It will also damage the children who are the subject of court orders, because now the experts who give evidence in child cases are placed within this table of reduced fees, and the fees are set at below the level needed to maintain their practices.

The Government have given no evidenced reason for cutting by 10 per cent, and they have not waited for the outcome of the Family Justice Review, chaired by David Norgrove. In March of this year, its interim report commented on the adverse impact that cuts would have, the lack of data about case-handling and flow through the court, and the contribution made by the lawyers in the cases. In the 2009 study Family Law Advocacy by the very experienced researchers John Eekelaar and Mavis Maclean of Oxford University, it was shown that where lawyers were involved in family law cases concerning money and children, the majority of cases were resolved without court process or contested hearing. Even where the cases went to court, in the highly charged emotional atmosphere that one would expect, the presence of specialist family lawyers enhanced the prospects of resolution and shortened the court process, for they are minded to act collaboratively and in the interests of the children. Additional damage has already occurred to women and children through the closure, because of already instituted cuts, of the advice agencies Refugee and Migrant Justice, the Immigration Advisory Service and Law for All, as the noble Lord, Lord Bach, has just mentioned.

There are more constructive ways to save money. First of all there is too much judicial review, now used as the citizen’s right of appeal. I was surprised to find when I was the Independent Adjudicator for Higher Education, running an alternative dispute resolution service for students, that those students obtained legal aid to challenge our decisions. There should be a push back against the notion that human rights mean that any and every decision can be judicially reviewed at great cost to the public. As for human rights, the real denial of those is to the middle classes, who are neither poor enough to be eligible for legal aid, nor can afford to go to law at their own expense. They are therefore the real victims, who cannot access justice.

The other substantive reform needed is to bring certainty into the law of maintenance on divorce. An obvious model for this is the continental European system of community of property, to which the Scottish system is similar, which entails a fixed fifty-fifty split of post-marital property and little ongoing maintenance. Broad-brush justice it may be, but it is cheap and efficient to arrange. As long as we have our Rolls-Royce discretionary system of settling property issues on divorce, couples will continue to waste sums they can ill afford—sometimes amounting to as much as the property in dispute—on deciding who gets what.

This order should be annulled. The Government should await the Family Justice Review report and change substantive law to get a more efficient system without damaging the profession and its diversity.

--- Later in debate ---

[Lord Bach]

My Lords, I thank all noble Lords who have taken part in this debate, and especially the Minister for his winding up. I will give the House the good news, which is that I certainly do not intend to divide the House. I would very much like to, particularly given the degree of support for my Motion from around the House tonight—I am most grateful to noble Lords who have supported me—but it is too late to call a vote tonight, and in any event I am not certain that it would be the right thing to do, given that the Bill is due to come to this House next month. I will not be calling a vote, so anyone who wants to go now, please feel free.

I am afraid, though, that it was not the Minister’s arguments that persuaded me not to call the vote—indeed, if he had gone on much longer I might have been tempted to call it in any event. I shall make a few points and then the House can move on. Some very good speeches were made, if I may so. The noble Baroness, Lady Deech, talked about the Bar with great experience and knowledge. The noble and learned Lord, Lord Scott of Foscote, made some very important points, one of which I will come back to at the end of what I have to say. The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Ripon and Leeds were both right on the spot with their concern for children law, if I may call it that. My noble friend Lord Beecham, with his experience, made very telling points as always. Last, but certainly not least, the noble Lord, Lord Newton of Braintree, made a very telling contribution, and one to which I think the Government side should listen with some concern.

As to the speech of the noble Lord, Lord Marks, of course I admired his loyalty, perhaps rather more his loyalty to the Government and to the Minister than to his party, which as I understand it has already made it clear at conferences twice this year that it does not like the way in which the Government are behaving towards legal aid. He asked me to state which cuts my party would have made in Government. I am not sure that he was listening with his usual care to what I said in my opening remarks, which was that the Labour Lord Chancellor and myself put out a White Paper called Restructuring the Delivery of Criminal Defence Services, which we would almost certainly have put into effect had we been elected—which we were not—and which would have saved a great deal of money. It would have been controversial and I have no doubt that there would have been debates in this House too in that event.

I did notice that in his interesting speech there was nothing at all about social welfare law and nothing about whether he felt it was right to attack social welfare law. What I had to say earlier was very much based around that part of the order. He said very little about criminal law, either, and about whether savings might be made in that field. He quoted figures and speeches that I had made, in which I, like legal aid Ministers down the years—as they no doubt will in the future—had said how generous our legal aid system was compared to the ghastly rest of the world. I did use those phrases, and there is some justification in them, but to be honest, not perhaps quite as much as I used to think when I spouted those words. For example, we compare ourselves with New Zealand, another common law country, and say, “My gosh, New Zealand gives a much smaller amount for legal aid than we do”. However, the situation in New Zealand is quite different. There, for example, there is no liability compensation, which costs a great deal in this country. There are other considerations as well.

Let me be frank: when we were in Government, I have no doubt that we made mistakes in this field. I am sure we did. There is no doubt in my mind that his Government are making mistakes now as well. Perhaps the noble Lord, Lord Marks, will remember next time he speaks to the House on these matters that we are dealing with what his Government are intending to do, not with what my Government did or did not do when they were in office.

The Law Society has suggested savings of up to £350 million as an alternative to the legal aid cuts that the Government are putting forward. As we did not hear it tonight, we look forward very much to hearing what is wrong with the Law Society’s—

[Lord McNally]

What is wrong with the Law Society’s figure is that it does not save public expenditure to shuffle costs around Whitehall to other departments or to propose extra taxation on alcohol. That is not saving public expenditure; it is shuffling the pack.

[Lord Bach]

If the noble Lord is right, perhaps he will explain this decimation of social welfare law, with its few savings for the Ministry of Justice, and how it will cost infinitely more to the state as a whole when problems are not solved, people are chucked out of their houses, debts grow bigger, families break down and children commit crime. Other departments will have to pick up the pieces for the paltry savings that the Ministry of Justice will make. Please do not give us that stuff about public spending. The truth is that these Ministry of Justice savings—we have said that we accept that the MoJ has to find a number of savings—will cost the state and the community much, much more.

As the noble and learned Lord, Lord Scott of Foscote, said, civil legal aid is not an optional extra. The concern is that this Government are treating it just as an optional extra and the cost will be much greater. We could see which way the Government were going on legal aid way back in June or July 2010 when out of the blue they removed the grants that were given by the Legal Services Commission for young legal aid lawyers to get legal contracts with legal aid firms. It cost a few million pounds a year, if that. But the Government abolished them at the start and we should have been wise as to what they were planning to do now. There was absolutely no reason for doing that and there cannot be any reason for doing what they are intending to do now to social welfare law.

Legal aid in the civil field is well worth protecting. I shall end with a quote from Supreme Court Justice Lewis F Powell who spoke about the American system but it could just as easily be applied to the British system. He said:

“Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists … it is fundamental that justice should be the same, in substance and availability, without regard to economic status”.

He was right. I hope only that the Government change their mind. I beg leave to withdraw the Motion.

Motion withdrawn.

Crime: Youth Justice

Lord Bach Excerpts

Monday 24th October 2011 Lords Chamber

[Lord McNally]

I am well aware that the YJB is a much loved organisation and that a number of organisations have come to its aid. The noble Lord, Lord Warner, has voiced a number of concerns about this. We will return to this when the Public Bodies Bill returns to the House. I do not see that creating a new youth justice division within the MoJ, maintaining continuity and expertise, retaining the expertise of the staff who have worked on the Youth Justice Board, strengthening its focus on youth justice by establishing an advisory board on youth justice, and agreeing that Dame Sue Street, a non-executive director of the MoJ who has experience and knowledge of the youth justice system, should take a direct interest in youth justice matters, is in any way a retreat from the kind of commitments that the noble Lord wishes for.

[Lord Bach]

My Lords, the Minister has time after time from that Dispatch Box praised the work that the Youth Justice Board does. Everyone agrees that it has kept down the number of young people in custody and that it played a vital role in the aftermath of this summer’s riots. Why on earth are Her Majesty’s Government still determined to abolish it? Is it sensible or wise to abolish an organisation that everyone, including Ministers, thinks is doing a first-class job? How ridiculous is that? Would it not be sensible and rather more mature for the Government to drop these plans now?

[Lord McNally]

My Lords, we believe that the job can be done better. We have acknowledged—and I have certainly acknowledged from this Dispatch Box—that the YJB has overseen a considerable amount of success in treating young offenders. As I have just read out, the governance for youth justice within the Ministry of Justice will be better because it will have a more direct responsibility to Ministers. The buck will stop with the Minister responsible for justice, not with an arm’s-length body. We believe that that is an improvement.

Crime: Home Protection

Lord Bach Excerpts

Thursday 20th October 2011 Lords Chamber

[Lord Bach]

My Lords, I thank and congratulate the noble Lord, Lord Blencathra, on initiating this debate. He was much admired as a Member of another place for many years and is likewise already much admired in this House; not least, his speech is good evidence as to why. He spoke with great passion and clarity. I look forward very much to the Minister’s reply and will listen carefully to see what he will reveal about the Government’s intentions in this area. Those intentions have been, if I may say so, skilfully kept under wraps since the speech of his right honourable and learned friend the Lord Chancellor at the Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill last June in another place. So we look forward to hearing what the Government propose when the Bill is considered on Report in another place in the next few days.

I want to thank the other noble Lords who have spoken in the debate. The noble Lord, Lord Thomas of Gresford, gave us a masterly overview of the state of the law as it has been and still is today, and the noble Lord, Lord Selsdon, reminded us of the hard work he has done in order to gain information about entry into property. Both noble Lords are among the finest storytellers in the House. We enjoyed the stories of the noble Lord, Lord Thomas, about his earlier cases, and the noble Lord, Lord Selsdon, as always, about his experiences.

Our position as the Opposition remains very much what our position was in government, and I shall refer, if I may, to an Oral Question in this House on 25 February 2010. I was sitting in exactly the position that the Minister is sitting in today and I was asked by my noble friend Lord Mackenzie of Framwellgate whether we planned to change the law following recent cases. We said then that we,

“strongly support the rights of members of the public to defend themselves, others and their property with reasonable force. Under the law as it stands, a person is entitled to use reasonable force in self-defence to protect another person or property, to prevent crime or to assist in the lawful arrest of a criminal. The Government—

the Labour Government—

“have no plans to change the law on self-defence. The law is already in the right place and is working well”.—[Official Report, 25/2/10; col. 1086.]

We stand by that position because the law in the field of self-defence does work. As the Minister’s noble friend, the noble Lord, Lord Carlile of Berriew, said in the same exchange:

“Does he agree that the exercise of prosecutorial discretion and the good sense of the jury is a real protection for individuals in these cases?—[Official Report, 25/2/10; col. 1087.]

Of course the answer to that is: yes, it is. I would argue that prosecutorial discretion is widely and sensibly used in these cases. In our view, the CPS guidelines referred to by the noble Lord who introduced the debate are clear, straightforward and, following the phrase used by the noble Lord, Lord Thomas, full of common sense.

According to the excellent House of Commons note that has been produced on this issue entitled, Householders and the Law of Self Defence:

“An informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders into houses, commercial premises or private land. Only seven of those … resulted from domestic burglaries”.

It is not claimed that that is the exact figure, but that is what the trawl found, and indeed I suspect that the figure is actually a bit larger because I do not think it includes a case in which I appeared for the defence, which I promise noble Lords I am not going to tell them about now—I saw the Minister worrying about that. But I do not think it is included because it was not a homicide case—it concerned causing grievous bodily harm. Surely this proves how seriously the Crown Prosecution has taken its responsibility over the years in not prosecuting when it would be wrong to do so. There is a second safeguard—the double lock that the noble Lord, Lord Thomas of Gresford, pressed on us—that the juries who hear these cases use their common sense, which is at the very heart of the reasonableness test, and invariably get their decisions right in these cases.

There is a very strong consensus—and noble Lords will have their own opinion whether it is a right consensus or a wrong one—that all those concerned with the administration of justice, be they judges, advocates, barristers or solicitors, or those who study these matters in detail, believe in essence that the law as it stands works and should not be tampered with. The Judicial Studies Board document of March 2010 sets out the law in order to assist judges in self-defence cases, both generally and in burglar-type cases in particular.

What are the Government going to do to change the present position? Are they going to do anything? The House will know that the Conservative Party manifesto of 2010 included a pledge,

“to give householders greater protection if they have to defend themselves against intruders in their homes.”

This seemed to fit in and imply that a grossly disproportionate test would replace the reasonableness test. The right honourable Chris Grayling, when he was shadow Home Secretary, said in December 2009:

“At the moment the law allows a defendant to use ‘reasonable force’ to protect him or herself, their family or their property. Conservatives argue that the defence that the law offers a householder should be much clearer and that prosecutions and convictions should only happen in cases where courts judge the actions involved to be ‘grossly disproportionate’”.

In December of that year, the present Prime Minister made an equivalent comment. Is that what the Government intend to introduce in the LASPO Bill? I invite the Minister to tell the House today.

In the Oral Question that I referred to earlier, the noble Lord, Lord Lester, then speaking from the Liberal Democrat Front Bench, said that,

“we on these Benches entirely agree with the way that the Minister”—

that was me at the time—

“has expressed the position, namely that there is a fair balance in the criminal law as it stands and no need for reform. Has the Minister noticed that so far in this short debate, the Official Opposition have not made clear their position? Does he agree”—

these are important words, I think—

“that if the Official Opposition were in government and sought to change the law in the way suggested, they would run up squarely against the European Convention on Human Rights and would find themselves in grave danger of violating the rights of the individual?”.—[Official Report, 25/2/10; col. 1087.]

Does the Minister agree with that statement?

I remind the House of some of the comments that have been made in regard to the “grossly disproportionate” test. Peter Mendelle QC, who was chair of the Criminal Bar Association in January 2010, argued that those who proposed that test should:

“Leave it alone and stop playing politics with the law … This is not law and order. This is no law—and disorder”.

Quite tellingly, Michael Wolkind QC, who represented the defence in the both the Martin and the Munir Hussain case—I think that he did so in the Martin case at appeal only—gave telling expression to why “grossly disproportionate” is the wrong test. He said that permitting householders to use any force which was not grossly disproportionate would amount to “state-sponsored revenge”. He said that there was no need for the law to be changed. He went on:

“The law already recognises that people react in a certain way in the heat of the moment … If I manage to tackle a criminal and get him to the ground, I kick him once and that’s reasonable, I kick him twice and that's understandable, three times, forgivable; four times, debatable; five times, disproportionate; six times, it's very disproportionate; seven times, extremely disproportionate — in comes the Tory test”—

he was talking in early 2010. He continued—

“Eight times, and it's grossly disproportionate. It is a horrible test. It sounds like state-sponsored revenge. I don't understand why sentencing should take place in the home. Why can't it go through the courts? Why can't the jury, as they always do, decide what is reasonable?”

We on this side think that the “grossly disproportionate” test is the wrong test. Can the Minister tell us whether the Government intend to bring in such a test and, if they do not, what they intend to change in the existing law, which we argue works very well?

--- Later in debate ---

[Lord McNally]

By the time I had reached the end of a rather long road near Archway, I was so exhausted that I doubt that I would have inflicted much damage on him.

However, I understand the point made by the noble Lord, Lord Blencathra. Someone breaking into your own home is a terrifying experience. A noble Baroness in this House—I will not name her because I did not get her permission—told me about a burglary and what a trauma it was for her. Interestingly enough, the healing for her came when the burglar was arrested later and she was asked whether she would like to meet him. Her reason for telling me the story was to advocate the benefits of restorative justice. She said that whereas what she had confronted in her flat was a terrifying situation and someone she was very frightened of, when she met a rather pathetic drug addict who had broken in in the hope of getting something to feed his drug addiction the terror somehow drained away. Her story was a little bit of anecdotal evidence of restorative justice in action and benefiting the victim.

The noble Lord, Lord Bach, asked about the Human Rights Act and the ECHR. As he well knows, any proposals that we would have to make—

[Lord Bach]

I was quoting the comments of his noble friend Lord Lester about the Human Rights Act.

[Lord McNally]

My point on that is that, as with any legislation, the Minister in the sponsoring department would have to give the assurances on compatibility. I am absolutely convinced that when it comes to my turn to put these matters at the Dispatch Box my noble friend Lord Lester will show the same unswerving support to me as the Minister as he showed to the noble Lord, Lord Bach, those couple of years ago, but we will see.

There is no intention to sweep away the reasonable force test, but we think that there is a case for clarification. The current law on self-defence was last reviewed, as the noble Lord, Lord Bach, said, during the passage of the Criminal Justice and Immigration Act 2008. That Act clarified the operation of these defences. The court must consider whether the degree of force used by the defendant acting in defence of themselves or others, or to prevent crime, was reasonable in the circumstances.

I know that the Opposition trawl back into past speeches by various individuals—they are entitled to do that; I have done it myself—but the coalition agreement states:

“We will give people greater legal protection to prevent crime and apprehend criminals. We will ensure that people have the protection … they need when they defend themselves against intruders”.

It is on that basis that we have started this process, as the previous Government did in 2008. As my noble friend Lord Thomas pointed out, this is a piece of law that has developed over 250 years. He went back to quoting Blackstone, and it is amazing listening to Blackstone just how contemporary it is in the issues that it addresses.

There is one thing that worries me about “reasonable and proportionate” and about the vigour of my noble friend’s approach. My noble friend Lord Thomas referred to a man who shot a trespasser and even the pacific noble Lord, Lord Selsdon, extolled the virtues of a shotgun—in that case it was for a 136-kilo boar—but there is a worry that we have to get the balance right on this. We do not want a vigilante society or one where people, in the pursuit of protection, start thinking that the gun in the bedside table is the best protection that they could get. It just so happened that my copy of New Scientist fell through the door as I was about to leave this morning. I had better come clean; it does not come for me but for my two sons, who are regular readers. However, I was looking at it today and my eyes fell on an article which shows that in the United States around 20,000 children are injured by firearms each year; a further 900 incidents are fatal; and some 30 million American children live in homes where there is at least one firearm. I know that the United States has very much more of a gun culture but I worry that unless we get the messages clear on this, we could slip towards the idea that firearms are a legitimate way of protecting your home. That is certainly not the way that we want to go.

Incidentally, the noble Lord, Lord Selsdon, pointed out that he was a former baseball player, hence the fact that he has a baseball bat, but I saw again in one of those statistics that there are far more baseball bats sold in this country than people who play baseball. It is probably worth a PhD being done somewhere to find what other uses there are for them. One of the things that came through in the contributions is that the facts are different in every case. Like my noble friend Lord Thomas, I put great faith and trust in a jury and a judge who hear all the facts and can balance the arguments. Again, we must therefore not retreat too far from those principles.

The noble Lord, Lord Selsdon, produced an interesting speech, as he always does. The early theme of it was, “I am a pacifist but I will knock the block off anyone who says that I’m not”, but he also got on to the issue of an Englishman’s home being his castle and where we have got to on things such as search and seize powers. He pointed out that the Protection of Freedoms Bill, which will be coming before this House, will address some of the issues that he has been campaigning on, including the scale of coverage by CCTV cameras. There is always an interesting kind of clash with CCTV; anybody who has been canvassing on the doorstep knows that people like CCTV and the security it gives, yet they feel a little uneasy about a surveillance society. We will be having opportunities to discuss those matters. On the delivery of leaflets, I have had debates on the doorstep with householders who believe that I am intruding by pushing through their letterbox a Liberal Democrat leaflet, whereas I have argued that I am exercising my right in a participating democracy. To date, none of those exchanges has ended in violence on either side.

I share some of the concerns of the noble Lord, Lord Selsdon, about intrusive telephone calling and the way in which these bodies now seem to be able to ring through for sales purposes. You can get them blocked but the noble Lord identifies a very real problem. There was also his concern about officialdom calling. One can say time and time again never let anybody into your house unless you are absolutely sure who they are and sure about the validity of the person calling. Yet I know from reading my local newspaper that the elderly are particularly vulnerable to calls from bogus officials, who use that opportunity to commit crime. So some of the issues raised by the noble Lord about intrusion and related matters are very pertinent.

I should like to respond to the challenge from the mover, the noble Lord, Lord Blencathra, and to the noble Lord, Lord Bach, by stating exactly where we as the Government are. The two main issues that were raised were self-defence and squatting. I can assure noble Lords that both issues are high on the Government’s priority list. They form part of a range of policies to fight crime and to give people greater confidence that the law will protect them when they go about their business in a reasonable and law-abiding way. I will outline the Government’s plans for clarifying and, where necessary, strengthening the law in both areas in the order that the noble Lord raised them.

First, let us be clear that there are a number of simple precautions that homeowners can take to reduce the risk of burglary such as installing alarms, planting prickly shrubs or other things along the perimeter fence, not leaving valuable items on display and leaving lights on when the property is empty at night. But even if every precaution is taken, there will be instances where an intruder is not deterred from breaking into somebody’s home. As I have said, it can be a very frightening prospect indeed to be confronted by an intruder in your own home. The Government believe that the law should be as clear as possible about what a homeowner can do to defend themselves, other people or property.

As noble Lords have heard, the current law on self-defence allows a person to use reasonable force to protect him or herself or other people, and to prevent crime. The current law makes clear that a person in this situation may use all force that is reasonable in the circumstances as he or she perceived them to be at the time. That last bit is important: the law rightly recognises—my noble friend emphasised this—that a person acting in the heat of the moment cannot be expected to weigh to a nicety precisely what level of force was required in the circumstances. Having said that, I agree with the noble Lord, Lord Blencathra, that the public may still be doubtful about what “reasonable force” means in practice and that further clarification in this area would be beneficial.

Noble Lords may recall that my right honourable friend the Prime Minister announced recently that he wanted to put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will have the law on their side. We have been working on new legislative measures to achieve that and are still finalising the details of the policy. The provisions will be designed to give people greater certainty about what it means to use reasonable force in self-defence. We are not planning to sweep away the principle altogether, or to give householders the right to use all the force that they are capable of mustering, which appears in some ways to be what the noble Lord is suggesting. Giving householders carte blanche to do whatever they like to an intruder would be a very dangerous strategy. A press release by the CPS in January 2005 provides some examples of where householders have and have not been prosecuted. In one extreme case, a defendant caught an intruder, tied him up, beat him up, threw him into a pit and set fire to him. I do not think that anybody would agree that that sort of behaviour should be condoned, even if the defendant was extremely frightened. If we abolish the concept of reasonable force and say that householders can do whatever they want to an intruder, we could effectively end up sanctioning this type of conduct, or other forms of vigilantism.

The noble Lord, Lord Blencathra, referred to recent cases in Manchester where homeowners had been arrested for killing intruders, only for the CPS to decide to take no action. In my view, these cases show that the law is broadly in the right place and that the majority of homeowners who act honestly and instinctively in self-defence will not be prosecuted, but I accept the noble Lord’s point that defendants in these cases may be on tenterhooks following such an intrusion and I think it is important that in these cases the CPS tries to act with some speed. I will draw his remarks to the attention of the Director of Public Prosecutions, who I am sure is aware of the need to be as expeditious as possible in deciding whether or not a charge should be brought, but I do not think it is right to say that householders should never be arrested for killing an intruder.

The police have a difficult job when they are called to an address where someone is dead. They have to work out what has happened and an arrest may well be necessary in order to allow for a prompt and thorough investigation of the case. The Government are working with ACPO on new guidance for the police in order to ensure that consideration is given to whether somebody may have been acting in self-defence, but there will always be cases that are not clear-cut, where it is important that the police investigate the allegation. I saw an example in an earlier briefing in which the apparent cause of death was an attempted burglary, but further police investigation showed that there were gang and drug aspects to the case that made the death not necessarily a result purely of self-defence. One has to realise that there are cases that are not as clear-cut as some of the Manchester examples that the noble Lord drew attention to.

Let me turn now to the points that the noble Lord raised about squatting. The Government share his concern about the harm that squatters cause. Residential and non-residential property owners have contacted Ministers and Members of Parliament time and again about the appalling impact that squatting can have on their homes and businesses. It is not only the cost and length of time it takes to evict squatters that irks property owners; it is also the cost of cleaning and repair bills which follow eviction. While the property owner is literally left picking up the pieces, the squatters have gone on their way, possibly to squat in somebody else’s property. Again, the noble Lord gave some very good examples of where even the smallest, most trivial of crimes bring down the full weight of the law, yet people can find themselves being told to take the civil law when their property has been squatted.

The current law already provides a degree of protection for both commercial and residential property owners, as offences such as criminal damage and burglary would apply. There is also an offence under Section 7 of the Criminal Law Act 1977 that applies where a trespasser fails to leave residential premises on being required to do so by, or on behalf of, a “displaced residential occupier” or a “protected intending occupier”. This offence means that people who have effectively been made homeless as a result of occupation of their properties by squatters can call the police to report an offence. However, there are many residential property owners, including landlords, local authorities and second home owners, who cannot be classified as “displaced residential occupiers” or “protected intending occupiers”. Given the level of public concern about the issue, the Government decided to consult publicly on options for dealing with it. There is a consultation paper out which sets out a range of legislative options. The consultation process ended on 5 October and generated more than 2,200 responses, which officials at the Ministry of Justice are now analysing.

While most property owners would evidently support tougher measures to tackle squatting, a number of bodies such as Shelter and other charities have pointed out that people would not squat if they had somewhere else to go. Of course, one of the Government’s priorities is to try to address the shortage of affordable housing. The Government are taking both sides of the argument into account as they develop proposals in the area. I cannot pre-empt the Government’s formal response to the consultation, but I hope that we will be able to announce our plans in more detail very soon. As I said, this has been a relatively short debate—although I have been told that I have over-run my time—but I hope that I have met a number of the points. I have certainly found it extremely useful, not least to have had a useful prod from both my noble friends.

--- Later in debate ---

[Lord Bach]

I half won it.

[Lord Blencathra]

I feel in a similar position today: I feel I have half won on something. I am grateful to my noble friend the Minister for his statement of what the Government intend to do, I look forward with interest to the proposals on squatting and I urge on him my halfway-house solution: let us tackle the problem of domestic premises being taken over first. If the Government’s changes to the law there work, then one can look at commercial premises afterwards.

On self-defence, yes, I was trying to push my noble friend further than I know the House wants to go, or the Government want to go. I have no real objection to the concept of reasonable force, if the CPS guidelines are followed. Like the noble Lord, Lord Thomas, and other noble Lords, I am entirely supportive of the jury system; we must keep that. I am merely suggesting that there are some cases I have read about where the CPS should not have taken someone to the jury stage, but should have exercised the judgment to drop the case—Omari is a case in point. I also note the point that the noble Lord, Lord Bach, made that, in a trawl, there were only about 11 cases, maybe slightly more, which the CPS did advance.

I conclude by saying that I hope my noble friend will urge the CPS to make a rapid decision in such circumstances. Those of us who are addicted to “CSI: Miami” are used to Horatio confronting a highly complex, horrific crime scene, with 20 different suspects, reaching clarity within 24 hours and deciding who the bad guy is and who is innocent. I rather want the CPS to do the same in all these cases. I thank all noble Lords who have participated in the debate and look forward to hearing the Government’s proposals in due course. I beg leave to withdraw the Motion.

Legal Aid

Lord Bach Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord McNally]

My Lords, I did not say that they were all being paid on time, but I did say that the Legal Services Commission is addressing the problem that has arisen. A backlog had built up and the commission faced criticism, but it has addressed the problem and is moving to cut the backlog. So I am not being disingenuous in any way. I am acknowledging that there has been a problem, which the commission is addressing. It maintains that the vast majority of payments are being made within their published target times.

[Lord Bach]

My Lords, the Question tabled by the noble Baroness is about legal aid practitioners in the field of domestic violence. Based on the incredibly restrictive definition of domestic violence set out in the legal aid Bill currently going through another place, how do the Government propose to protect women who are at risk of domestic violence for the first time?

[Lord McNally]

My Lords, we will eventually discuss the various scopes in the legal aid Bill. The Government are satisfied with the scopes they have set in the Legal Aid, Sentencing and Punishment of Offenders Bill and believe that they cover the most vulnerable in family and domestic law. But I freely admit that we are going to have some interesting debates on the matter. I hope that that helps the noble Lord. The debate has yet to come to this House.

Freedom of Information (Designation as Public Authorities) Order 2011

Lord Bach Excerpts

Monday 17th October 2011 Grand Committee

[Lord Maclennan of Rogart]

The order before us is welcome, in general terms. As the extension of the operation of the Freedom of Information Act to the three bodies concerned was first raised as long ago as 2007, there has been plenty of time for grave, or even limited, concerns to be raised about the matter. There are, consequently, only some quite small matters that spring to my mind as being worthy of inquiry. These arise not so much from the propositions themselves as from the impact assessment, which was published in June of this year, and the very helpful Explanatory Memorandum.

This memorandum describes ACPO as being a professional body, not a staff association. I find that concept a little hard to come to terms with because there seem to be occasions when ACPO does, to some extent, consider matters that are peculiar to the police and may not have a direct public impact. I am thinking, for example, of whether it would be desirable for their reactions to a proposed restructuring of the police to be identified as the views of individuals participating in a debate on the subject. It is clear that the views of ACPO as a whole on such a restructuring should be engaged, but it cannot be entirely desirable for the way that debate took place to be made public. I know that individual members of ACPO are already subject to inquiry under the Freedom of Information Act, so perhaps I am splitting hairs. However, there must be matters that it is appropriate for professional associations not to disclose because they apply to them and not necessarily to the public.

The more important issue arises from the indication that the Government are continuing the process of scrutiny of the consequences of the Freedom of Information Act, although this may be just a failure of understanding on my part. The Explanatory Memorandum that we have been given indicates that that is an ongoing process, but that the results might be known by the end of this month. That is referred to in paragraph 12, “Monitoring & review”. It states that any changes to be made to the FOI Act as a whole will be contained in a memorandum to be submitted to the Justice Committee later this calendar year. How extensive and deep will the inquiry be? Are all the departments and all the many bodies covered being asked to make a submission? That must create a very considerable body of work.

That should be viewed in conjunction with what was stated in the impact assessment of the policy review; namely, that there will be no arrangements in place that will allow a systematic collection of monitoring information for future policy review. To invite all the bodies covered by FOI to make submissions once as a kind of big research exercise is perfectly sensible and reasonable, and was envisaged when the Act was brought forward. However, if we are to maintain proper parliamentary oversight of the effectiveness of this scrutiny, this openness and the purposes of the Act, it would make sense if problems that arose in the administration of the Act were noted and tabulated so that it was relatively easy for the bodies, where there is a conflict, to produce that information without going into the difficult process of historical digging, which would take far longer and require more public funding. I rather question the wisdom of not having a systematic collection of monitoring information for future policy reviews if that is the case.

Apart from that relatively minor matter, I endorse the intentions of the Government and am glad that these provisions have been brought forward.

[Lord Bach]

My Lords, I thank the Minister for introducing the order so clearly and other noble Lords who have asked questions of some importance, particularly the final question, which the noble Lord, Lord Maclennan, majored on, which was around the Government’s plans for reviewing the Freedom of Information Act.

I know that the Minister is giving what they nowadays describe as a keynote address this Thursday at the Westminster Legal Policy Forum on the very topical subject of:

“The future of Freedom of Information—challenges for expansion”.

I, alas, cannot be present because of duties in the House. If this sounds like an advertisement to go and hear the noble Lord, that is exactly what it is. However, I hope that he may be able to say something both this afternoon, in response to his noble friend Lord Maclennan, and on Thursday, because I know that he has particular duties in ministerial terms as far as this Act is concerned. I hope that he can perhaps unveil slightly today what he may say to his other audience on Thursday.

We support the order. The Freedom of Information Act was one of the substantial achievements of the previous Government. It will be long-standing and of substantial value to our freedoms. It does not always seem that way if you are sitting in a ministerial chair or even in a senior civil servant’s chair. It can be awkward, difficult and seem sometimes almost impossible, but that is precisely why it is in existence. So we support both the Act and this minor order—minor not for the three bodies involved but in the great scheme of things. It was in March 2010, as paragraph 8.4 of the Explanatory Memorandum tells us, that the decision to bring these bodies within the Act under Section 5 was made and communicated to each body. We are delighted to see the order before the Committee today.

My only question to the Minister is one that I mentioned to him briefly earlier. We read in paragraph 8.4 that two of the bodies “welcomed publicly” the fact that an order such as this one was to be made, bringing them within the scope of the Act. It does not say anything about the response of the third body, UCAS. Can the Minister help the Committee with how UCAS responded?

As I said at the start of my few remarks, we support what the Government are doing on this occasion.

[Lord Martin of Springburn]

My Lords, first, I apologise for being slightly late. I was listening to the debate on the Floor of the House and noticed that this subject had come up. I thought that I would come up and listen to the Minister.

I can well understand that we are talking about the chief police officers of England, Wales and Northern Ireland. Of course, we have a devolved Parliament for Scotland, and there are several police forces in Scotland. Will the Minister consult the Scottish Parliament to see that freedom of information will be available in this respect for police authorities north of the border?

The Minister has said that he, on behalf of his party, welcomes freedom of information. It did not stop those who were in an executive position complaining about freedom of information after it was pushed through Parliament. Many officials and Cabinet Ministers sleepwalked through that particular incident. I make no complaint about the legislation; I simply ask the Minister a question. Many journalists use freedom of information so that they can get what is best described as an angle for their particular story. When they ask the question and there follows a period of, let us say, 27 days—although I may be contradicted on that—I have known it to be the case with matters of the House that they have complained bitterly that the freedom of information was given to them and to the general public. They have complained bitterly that it spoiled their story that everybody else should get the information. Freedom of information is about everybody getting that information. They are on record as complaining; they are using it as a device to get a scoop, or whatever they call it.

I feel strongly that once the information is issued to the applicant for that freedom of information, it should be put in the public domain immediately afterwards. In other words, if the information is given to the applicant at 2 pm on a given day, by one minute past two everyone should be able to get that information. I know that some people say that the identity of an applicant should not matter and that you should not know who they are. However, it is a bit rich if an application is made by someone sitting in garret in Toronto, asking for information, which takes a considerable amount of public funding. We should at least know whether a taxpayer of this country is making that application. Can the Minister mention that? It is not fair that someone who has nothing else to do with their time in another country can make an application and no one has to say where they come from. That is very important.

--- Later in debate ---

[Lord McNally]

My Lords, I am very grateful for all the contributions, which have been extremely helpful in putting this order in perspective.

Let me deal first with the point raised by the noble Lord, Lord Dixon-Smith. If it was thought that a matter discussed by ACPO was should properly be protected for reasons of national security, the Act contains the capacity to claim exemptions for that information. That can, of course, be challenged through the Information Commissioner, The noble Lord is right to say that ACPO could sometimes discuss security matters but the Act makes provisions for the protection of national security in those circumstances.

The noble Lord, Lord McAvoy, raised a specific case in relation to Her Majesty’s Revenue and Customs. I cannot comment on individual cases. HMRC can protect commercial confidentiality in its dealings. I will be as interested as the noble Lord is to discover what the Public Accounts Committee finds out but it is a matter for that committee, rather than for us.

My noble friend Lord Maclennan, pointed out that the matter of those three bodies was first raised in 2007 and 2009. I am surprised not to see the noble Lord, Lord Wills, here, who turns up at these debates like Banquo’s ghost to point out that he was about to do X or Y on freedom of information, or that the noble Lord, Lord Bach, was. I acknowledge that this is part of a process started under the previous Administration. Indeed, I consider the Freedom of Information Act to be one of their great successes. The noble Lord, Lord Bach, is quite right: the fact that Ministers and public officials are sometimes discomfited by the Act has always been proof positive that it was a good piece of legislation.

My noble friend Lord Maclennan, asked how ACPO can have free and open discussions before ACPO policy is decided. We understand that bodies need a space in which to work out their policy but, as I recall, that was the great argument about Cabinet discussions as well. There is always a tension between having the right to know what has gone on in an organisation and protecting free discussion before a collective decision is made. ACPO welcomed its inclusion, and I am quite sure that it will manage to work out how to operate under the Act.

I understand the concern of my noble friend Lord Maclennan that we seem to be engaging in a one-off exercise, but that is not true; we will continue to monitor the working of the Act. I am very pleased that we have moved more quickly than we needed to post-legislative scrutiny; that is entirely healthy. The document to which the noble Lord referred is being prepared by my department as part of the process of post-legislative scrutiny. It will be an assessment of the working of the Act, which will provide a basic working document to the Justice Committee to allow it to start its work of post-legislative scrutiny.

That process will go in parallel with the exercise being carried out by my right honourable friend Francis Maude on the right to data, in which we will also try to push the boundaries of the citizen’s right to know about information. I understand where my noble friend is coming from in asking where all this fits. We are perhaps not moving in straight order on this, but we are getting the job done. By the end of this process many more organisations will be covered by freedom of information. We will have a lot more information proactively coming from government through the right to data process. As a result, we will have much more open government, with all the benefits that come from it.

I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.

I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director.

[Lord Bach]

It was the Minister, I think.

[Lord McNally]

Was it the Minister who came before us? The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.

The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.

On the question that the noble Lord, Lord Martin, raised about ACPO Scotland, freedom of information is a devolved matter, and the inclusion of ACPO Scotland is a matter for the Scottish Government. I hope I have covered the issues raised—

[Lord Bach]

What about UCAS?

[Lord McNally]

I do apologise. The noble Lord, Lord Bach, raised that and I found the answer, which is twofold. Of the three, it was UCAS which raised some concerns when discussions began. Its concerns were the costs it would face in complying with the FOI Act, how it would protect sensitive information, and other costs outlined in the impact assessment. During consultation it was satisfied that the FOI Act exemptions could protect this information, and since those consultations it has been happy to see itself included within the ambit of the Act. I apologise that I got carried away with the questions asked by the noble Lord, Lord Martin. Does he have another?

Human Rights Act 1998

Lord Bach Excerpts

Wednesday 12th October 2011 Lords Chamber

Asked By

[Lord Bach]

To ask Her Majesty’s Government whether they continue to support the Human Rights Act 1998.

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

Yes, my Lords. However, as the noble Lord will be aware, the Government established an independent commission to investigate the creation of a UK Bill of Rights in March 2011, thus fulfilling a commitment made in the coalition’s programme for government.

[Lord Bach]

My Lords, I thank the Minister for his Answer. The manner in which this important issue was not so much debated as debased last week by senior Cabinet Ministers was frankly infantile and not worthy of the serious matters involved. For a more serious consideration of the debate, may I urge the Minister and perhaps all Members of the House to read the article by my noble and learned friend Lord Irvine of Lairg, published in today’s Guardian? The Prime Minister and the Home Secretary have both said, and I quote the latter’s words, that,

“the Human Rights Act needs to go”.

Does the Minister agree with his right honourable friend the Home Secretary?

[Lord McNally]

One of the problems about party conferences is that the newspapers like to heighten and find clashes between Ministers. I am old enough to remember it said that every time Harold Macmillan returned from a journey abroad Rab Butler was at the bottom of the steps to grip him warmly by the throat. The Government’s policy is very clear, and the Home Secretary and Justice Secretary are on exactly the same page on this. The commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. It will provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of the UK chairmanship of the Council of Europe. That is the Government’s policy.

First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Lord Bach Excerpts

Wednesday 12th October 2011 Lords Chamber

“Justice” is not a word that comes into the Explanatory Memorandum or the impact analysis; the objective is to save money, irrespective of whether the outcomes conform with the merit of the applications.

[Lord Bach]

My Lords, I start by thanking the Minister for explaining the order in his opening remarks so clearly and succinctly. I also thank the other speakers in the debate. It could be argued that between them they pretty well demolished the entire point of the order. Of course, when we were in government, we too thought of this—but we did not implement it. It now falls to the Minister to justify why we should take the steps that he intends us to take.

Clearly, this is an important and controversial order. Many points that I wanted to make have been very well made already by the three Back-Bench speakers. It is an important moment not least because—as the noble Lord, Lord Thomas of Gresford, said, and as paragraph 4.1 of the Explanatory Memorandum states—this is the first instance of fees being imposed in an action by the state against an individual.

Secondly, perhaps a little less importantly—this point was made by the noble Lord, Lord Avebury—it would also be on top of the fee already paid for making the application that is being appealed against. This point was very well made by the Immigration Law Practitioners’ Association in its briefing to noble Lords.

The first application for leave to remain in the United Kingdom—the noble Lord, Lord Avebury, used this example—costs £900 per person. If it is made at the UKBA, the cost will be £1,250 per person. The fee is not for the appeal but for the original application. It costs £70 to apply for a visitor's visa from abroad. An application for a student visa costs £220, and there are other costs as well. The fee is not refunded if the application is refused. I suppose that some unmeritorious appeals might not be heard as a consequence of the order but I wonder, particularly after the analysis of the impact assessment made by noble Lords, how much the Government really expect to save from the order before us.

I pay tribute to the Government because they have conceded on more points following the consultation. This point was made by the noble Lord, Lord Newton of Braintree. They have made genuine concessions, particularly in the exemptions under Article 5 of the order in the areas of under-18s, children in need, asylum support, people in detention, appeals and decisions to remove. That is a more generous list than before the consultation began. However, the House would like to ask—noble Lords already have, in so many words—whether the exemptions are wide enough. In particular, Article 5(2) states:

“No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act”,

in receipt of legal aid. How can this provision be squared with the proposed withdrawal of legal aid for many areas? To put it mildly, there is an irony in its appearance in the order that we are being asked to pass tonight when the legal aid Bill is well on its way to this House.

Article 5(3) in a number of cases will become an irrelevance. Asylum cases will generally stay in scope, but much immigration law will be removed from scope if the Government get their way. I hope the noble Lord will not object if I repeat a question that was asked by my honourable friend Mr Andrew Slaughter MP, who spoke from the opposition Front Bench when the order was debated in another place on 14 September last. He asked why, if legal aid becomes no longer a criteria simply because it does not exist, an exemption should not be made for those on low incomes or specified benefits who would have been eligible for legal aid if it had still existed.

The Minister drew back the curtain a little on this when he said that the Government would come forward to make allowance for legal aid going out of scope. However, I would like him in his reply to tell us a little more about what the Government plan. Surely the criteria should remain the same whether legal aid exists or not. The Minister in another place did not answer that question in his summing up. I hope that the noble Lord will tonight.

Nor did the Minister in another place answer when he was asked to clarify figures from 2009-10 for success rates when public funding was available in these cases, and for when it was not. The noble Lord, Lord Avebury, told us about the difference between oral and paper hearings. These questions are about when legal aid was available. I ask whether the following figures are correct. As far as concerns migration, there was a 52 per cent success rate on appeal without legal aid but a 60 per cent success rate with legal aid. On asylum cases, there was a 25 per cent success rate on appeal without legal aid and a 37 per cent success rate with legal aid. For entry clearance cases, there was a 36 per cent success rate without legal aid and a 65 per cent success rate with legal aid. Lastly, for family visits, there was a 44 per cent success rate without representation under legal aid and 53 per cent success with legal aid. The Minister in another place was not able to confirm whether the figures were correct. It may be that the Minister tonight cannot answer the question, either. If he cannot, I would be very grateful if he would write a letter with the answers to the questions, which will appear in Hansard, and send a copy both to me and to other noble Lords who spoke in the debate. Those figures seem to imply, and in fact go further than that to prove, that representation is of enormous benefit to appellants. This is hardly a surprising conclusion but it is of course a very important one in the arguments about legal aid that we will no doubt enjoy in a few weeks.

Transparency International: Corruption Perceptions Index

Lord Bach Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

Yes, my Lords, we have studied the document, and we keep close contact with Transparency International, which does a very effective job of keeping these matters before the public and before Governments. However, in this country there are two dangers. One is to say, “Oh, we don’t need to do anything because we are actually the ones who obey all the laws and it’s all the others who are corrupt”, and the other is to believe that we are somehow burdened down with corruption. Both extremes are wrong. There is corruption in this country, as in all countries, but it is not left untouched. As I say, the Bribery Act is in place, and my noble friend referred to the SFO, which is now playing an important part in the new structure of crime prevention set up by the Home Secretary. In consultation with law officers and other relevant colleagues, the Home Secretary is currently considering options for delivering the Government’s commitment to improve capability to tackle economic crime. The work of the Serious Fraud Office will play a key part in that strategy.

[Lord Bach]

My Lords, I am delighted that the Minister is praising the Bribery Act and using it in defence of the present position. He will of course recognise that it was an Act passed under a Labour Government, with support from all over the House. The worry is that it was not implemented until 1 July this year. My first question is why it took so long to implement and my second, bearing in mind that it has only been in force since 1 July, is whether there are any messages from the trenches. Is it working, or not?

[Lord McNally]

Of course it was, and all parts of the House can take credit for the fact that the Bribery Act was put on the statute book. The reason for the pause was for consultation and education, so that the Act was seen for what it is—a very useful piece of anti-corruption legislation. When we first came into office, there were lots of rumours going round that if you took a client out for a drink, for example, you would be charged under the Bribery Act, and various bodies, eager to make an honest penny, were offering consultancies to companies on how to avoid these various traps and pitfalls. So in consultation with the CBI, small business and organisations across the board, we worked very hard on guidance, which we published. The message from the trenches is that the Bribery Act is in place, it is effective, and if anybody is worried about its implications, the key thing to do is not to bribe.

Legal Aid

Lord Bach Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

I believe it is joined-up government but it is set against the reality that all departments are faced with severe budget restrictions. I have never denied from the Dispatch Box that if you cut budgets in areas that are helping vulnerable people there will be impacts on the aid available to them. In my department and other departments we are trying to focus the scope of what we are doing so that we target what is available to the most vulnerable and needy.

[Lord Bach]

My Lords, can the Minister confirm that, as a direct result of Her Majesty’s Government’s proposals in the Bill that is now in another place, young children who have been severely injured will no longer be able to get legal aid to pursue their claims for clinical negligence? Is that not an outrage in a civilised society? How do the Government justify this denial of access to justice?

[Lord McNally]

The Government’s assessment is that in most clinical negligence cases it will be possible to carry actions forward through arrangements with solicitors willing to take the cases. Where it is not, the special legal aid fund will kick in for cases not covered by such arrangements. It is not the case that people will not have access to justice in clinical negligence cases; they will continue to have access to justice. We have taken this tough decision because we believe that there are alternative ways of gaining access to justice, with the safety net of the special fund, which will be in the control of my right honourable friend the Lord Chancellor.

Personal Injury Lawyers

Lord Bach Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this “dirty little secret”, the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand—and we will respond to that demand—to ban it.

[Lord Bach]

My Lords, I am now slightly confused as to the Government's position on referral fees. I note what the noble Lord said in his written response to the noble Lord, Lord Carlile of Berriew, and what he said in his reply to the noble Lord, Lord Sheikh, today. Have the Government made up their mind to ban referral fees or have they not?

[Lord McNally]

I am only surprised that someone with such long experience as a Minister should leap on this as if I were dodging the question.