Gender Recognition (Approved Countries and Territories) Order 2011

Lord Bach Excerpts

Monday 27th June 2011 Grand Committee

[Lord Moynihan]

My Lords, I also support the order subject to the continued exemption for competitive sport, which the world of sport promoted and argued for at length in 2004 when the Bill came before this House in the first instance. It may help your Lordships if I briefly summarise the issue at stake there, in seeking reassurance from the Minister that in extending the list we retain the fundamental principle that competitive sport in this country will be exempt from the order, and will continue to be exempt from the Act.

It is important that the voice of sport continues to be heard before the order is accepted, as it could have a fundamental impact on the running of sport and its selection procedures since no surgery is required as a prerequisite for transsexuals to change their sex and have new birth certificates issued, with the full weight of the law backing their newly acquired legal gender not only in this country but in the countries listed in the order.

In pursuing an original amendment to the Bill, which was eventually accepted by the then Minister, the noble Lord, Lord Filkin, I sought to enable UK sporting bodies to continue to make decisions about whether individual transsexual people may take part in competitive sports competitions. At the time I was very conscious that national governing bodies of sport needed to be aware that considerable work would have to done to establish clear reasons for restriction of competition related to fair competition and/or the safety of competitors. The onus of proof is likely to be with the complainant, but the national governing bodies of sport could be vulnerable if policies, procedures and decisions are not robust. Legal precedents, such as the case of Renée Richards, the transgender female who won the right to compete in women’s tennis in the US Supreme Court, are likely to provide further challenges to sport’s regulation of single-sex competition.

There are several potential problems related to the recognition of the physical and physiological advantages attached to men and women in different competitive activities. This was reflected in my amendment, which was accepted by the then Government. It stated:

“A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport”.

Fairness in competition is facilitated by making provision for competition by categories other than sex—for example, age and weight. However, the latter categories are easy to define using the arbitrary limits of date of birth and weight on a specific date before or the day of competition. One of the intentions of the Gender Recognition Act was to protect the rights of individuals who wish to blur the boundaries between genders in their private lives. For sport, that is inherently problematic. It denies the only arbitrary limit between the categories of male and female: genetic sex at birth, as determined by chromosomes. The regulation of single-sex competition in sport currently depends on that arbitrary limit. Since the EHRA allows for the interests of the community at large to override the rights of the few, that arguably would mean that single-sex sporting competition may continue without legal challenge on the basis of sex at birth.

I give that background purely to set the scene for asking the Minister whether, irrespective of the legislation in each of the territories and countries in the order, governing bodies of sport in this country will still have the final word in determining those who enter into either the male or the female category, at whatever level of competitive sport. Should that remain the case, as I understand that it does, the order will have my full support. I look to the Minister for reassurance on that.

[Lord Bach]

My Lords, I can be brief. The Opposition support the order. I thank the Minister and other speakers in the debate; I thank him particularly for the clear way in which he outlined the order. I ask him to respond to the interesting points made by the noble Lord, Lord Moynihan, about the position as regards sport.

This is clearly an affirmative order; it has to come before the Committee. There will be changes in the future, of course; I hope that other countries come on to the list rather than countries coming off it. Will it really be necessary to bring that to a Committee sitting in this House and the other place, or is there any way around that? I do not know whether the previous Government willingly made this an affirmative order or whether it was forced on them by the then Opposition; it could have been either. In my view, if this is the sort of order to come forward, it would be much better for it not to be affirmative.

[Lord McNally]

My Lords, I thank the speakers who have participated in the debate. The noble Lord, Lord Lester, has a long and proud history in such legislation. Like him, I welcome the fact that we live in a world of growing tolerance in this area, which for the individuals concerned needs tolerance and understanding.

The noble Lord, Lord Moynihan, raised an important point and one on which I will try to give some clarification. The effect of a UK gender recognition certificate is the same regardless of whether it is obtained under the overseas application process or the standard application process. The overseas application process simply enables a transsexual person to obtain legal recognition in the UK through a simplified process if they have already satisfied authorities overseas that they live fully and permanently in their acquired gender. It does not enable a person to be treated in the UK as they would be in their home state. The effect of a gender recognition certificate is subject to UK law. That includes a transsexual person’s right to compete in competitive sporting events in the UK.

As originally drafted, Section 19 of the Gender Recognition Act made it lawful to prohibit a transsexual person with a gender recognition certificate from participating in a sporting event in their acquired gender if the restrictions were necessary to secure fair competition or the safety of other competitors. The Equality Act 2010 presented an opportunity to replace Section 19 and an overlapping provision of the Sex Discrimination Act 1975. After all, the Gender Recognition Act is not intended to protect transsexual people from discrimination; rather, it provides a mechanism whereby a transsexual person can obtain a change of legal status that reflects the gender in which they live permanently. Protection from discrimination lies in equality legislation. For this reason, Section 19 of the Gender Recognition Act and Section 44(2) of the Sex Discrimination Act were repealed and their effect replicated in Section 195(2) of the Equality Act. That provision makes it lawful to restrict participation of transsexual people in separate sporting competitions for men and women if this is necessary to secure fair competition and the safety of competitors. The participation of a transsexual person from overseas in a competitive sporting event in the UK is subject to these provisions. This remains the case even if that person has obtained a UK gender recognition certificate. I hope that that gives the noble Lord, Lord Moynihan, the clarity and reassurance that he sought. I know how important that is.

I was intrigued by the final question of the noble Lord, Lord Bach. We would have to amend the procedure for future orders but it is a valid point. I suspect that, at the time, Parliament was still getting used to this whole idea. We may need to look at the procedure and discuss matters through the usual channels to see if it can be done without the necessary affirmative resolution. Perhaps this is something that will only come before the House once every four or five years as updates are made. It is a valid point and I will take it back.

Legal Services Act 2007 (Appeals from Licensing Authority Decisions) Order 2011

Lord Bach Excerpts

Monday 27th June 2011 Grand Committee

These are the two points on which I would welcome an assurance. First, I look to my noble friend the Minister for a commitment that the necessary modification to the Rehabilitation of Offenders Act will be made. I understand that he may be pressed to say, “We’ll deal with that in a couple of weeks’ time”, but it would be wonderful if he was able to be more specific. Secondly, I seek an assurance that the provisions of the Legal Services Act allowing the external ownership of law firms will not be implemented until the necessary revision has been made.

[Lord Bach]

My Lords, I served under the noble Lord, Lord Hunt of Wirral, on a Joint Committee looking at the draft Bill. I was not a Minister at the time that the Bill went through, although I took some part in it from the Back Benches, so while I have some form on this, I do not have as much the noble Lord. I thought at the time, and I think even more strongly now, that the Bill was a very significant piece of legislation indeed, one that is already beginning to have genuinely profound effects on all three branches of the legal profession.

I congratulate the board on what it is doing. It has done a fine job until now, but as with all changes, and some of these are fairly revolutionary, it is important that the details are right and particularly important that they must be introduced sensitively. That is why I strongly support what has been said by the noble Lords, Lord Thomas of Gresford and Lord Hunt of Wirral, about the point of the Rehabilitation of Offenders Act. I, too, will ask the question because it really is essential that the order is brought forward as soon as possible, and therefore before alternative business structure firms become a reality. Indeed, I am not going to be as shy as the noble Lord, Lord Hunt, about quoting the Minister’s colleague, who was an opposition spokesman when the Bill passed through the House of Commons. He said this:

“The effectiveness of fitness-to-own provisions is a crucial element of the public protections that need to be in place before external ownership of ABS firms can safely be permitted. It is essential to avoid the spectre of law firms being owned by criminal elements”.—[Official Report, Commons, Legal Services Bill Committee, 22/6/07; col. 300.]

If that was true then, it is certainly true now, and he is in a position, as is the noble Lord, to do something about it. It is important that the order amending the exceptions to the Rehabilitation of Offenders Act is brought forward, and we look forward to the noble Lord telling us, when he replies to the debate, precisely when it will happen. We do not oppose either of the orders, and—again, rather late in the day—I thank the noble Lord for introducing them so clearly.

I want to say a little more before sitting down. On the statutory instrument concerning appeals, as I understand it the Law Society’s concerns were around the point that appeals from ABS firms, which were regulated by the Solicitors Regulation Authority, would go to the First-tier Chamber, whereas appeals and decisions from other law firms would go to the Solicitors Disciplinary Tribunal, the SDT. Now the SRA has agreed to use the SDT for appeals to do with alternative business structure firms. That was apparently agreed in March this year, but there is some surprise that no statutory instrument has yet appeared to put that decision into effect. Finally—as I am sure the Minister will be relived to hear—when will that statutory instrument be brought forward, and why has there been a delay? I congratulate the Minister on bringing the orders forward.

[Lord McNally]

My Lords, I have said before that, as a non-lawyer there is nothing more daunting than facing the noble Lord, Lord Bach, who, as he confessed, was the Minister responsible when the key legislation was—

[Lord Bach]

I am sorry to interrupt. The noble Lord was not listening with his usual attention, or else I was particularly inarticulate. I served on the Joint Committee under the noble Lord’s chairmanship as a Back-Bencher, and was indeed a Back-Bencher when the legislation went through, so I cannot be held to blame or praise for the legislation itself.

[Lord McNally]

I now fully understand. I will have to look at the noble Lord’s CV: I had always assumed that he had ministerial responsibility going back well over a decade.

[Lord Bach]

I am delighted that the noble Lord assumed that, but he was wrong. There was a gap in the middle.

[Lord McNally]

In any case, both the noble Lord, and the noble Lord, Lord Hunt, fill me with fear on this.

I am sorry about presenting these matters as separate orders; I was only following orders, as they say. I am pleased that the contributions have been, in the main, supportive and that it is agreed that the initial legislation and what we are trying to do now take us forward into a new era of legal service provision. In that respect, I was particularly reassured by the fact that the noble Baroness, Lady Hayter, from her position as spokesperson or defender of consumers in these areas, found them useful.

My heart, too, sank when I saw that, despite all the consultation and so on, we had ended up with two lines of solutions, whereas one would be much more preferable. We will continue to use our good offices to encourage regulation and lines of appeal in this area to be as simple and clear as possible. I share with the Committee that, the other day, I had the great honour of meeting the Vice-Minister of Justice for the People’s Republic of China. In a matter of general discussion, he asked me quite out of the blue if I could explain to him the regulatory system for our barristers and solicitors. The brief mentioned about nine different organisations, with any multiple of them having lines of appeal. I ended up by assuring the Vice-Minister of the absolute integrity and independence of the various branches of our legal profession and that I would write to him.

[Lord Bach]

That was the question I was going to ask. I thought the noble Lord would say that he would write to him.

[Lord McNally]

Yes, in Mandarin and with a suitable chart. We hope that the orders go some way along the line of trying to get some order into these things.

On the matter of the missing orders, they are being drafted. We are undertaking further consultation. At this stage, the draft standing order relating to the society is not finalised. Until it is, it cannot be approved to be laid before Parliament. As the order is subject to the affirmative resolution procedure, it will require parliamentary debate and approval before the order can be made. We will be back, folks.

Quickly, on the Rehabilitation of Offenders Act, that again is under review. The point that was made is being taken on board. The Law Society Council will have arrangements in place to consider fitness of owners. They are set out in its licensing rules. The Law Society Council has asked for the Rehabilitation of Offenders Act to be extended. An order has been laid before the House adding the head of legal practices and head of financial administration to be covered by the law. Again, I note what has been said here. These are serious matters and areas that need to be tidied up as we go through the process of bringing the ABSs on board and getting the right lines of appeal.

I am just seeing if there is anything else that I have either not understood or not covered. A draft order will be debated in the House next week. We are aware of the additional requirements sought for owners and managers. The matter is being discussed at the moment so, again, watch this space. I thank the contributors to the debate. I hope that this has been enough clarification. If I have missed things I will write to noble Lords.

My noble friend Lord Thomas raised the point about what the solicitors did not like. The Law Society did not sign up because of a principal concern that changes were needed to the First-tier Tribunal general regulatory chamber rules to allow a general power to award costs. The LSB has asked the tribunal procedures committee to consider changes to its costs rules but, on 1 March 2011, the committee came to the preliminary view that the rules in their current form were adequate to determine whether one party or another should pay costs. The Law Society has not consented to this order. As was said, it has made provision in its proposed licensing rules for the Solicitors Disciplinary Tribunal to be the appellate body for its licensing appeals.

Co-operation in Public Protection Arrangements (UK Border Agency) Order 2011

Lord Bach Excerpts

Monday 27th June 2011 Grand Committee

[Lord Thomas of Gresford]

My Lords, it is clearly sensible that the agency should be brought within the scope of the public protection arrangements. I have nothing to add to that. The most important thing is that it should legalise the passing of information between the various agencies that are concerned with these matters.

[Lord Bach]

I agree absolutely with the noble Lord, Lord Thomas of Gresford. I have nothing to say except that we support the order and I thank the noble Lord for moving it.

Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid

Lord Bach Excerpts

Tuesday 21st June 2011 Lords Chamber

[Lord Bach]

My Lords, I thank the Minister for repeating the Statement and for advance sight of it.

Our justice policy should, of course, be about protecting the public, punishing and reforming offenders, being on the side of the victim and bringing crime down. That underpinned our record in government and led to a 43 per cent fall in crime, reductions in reoffending and serious improvements in youth offending rates. Some crisis. However, this Government demonstrate that that is not what matters in their approach to crime and justice; what matters is cutting costs, despite the impact that could have, and is likely to have, on our communities.

We think the Government are right to have seen sense and taken heed of opposition to cost-driven proposals to reduce sentences by 50 per cent on early guilty pleas. A powerful coalition of the judiciary, justice groups, the Sentencing Council and victims groups rightly questioned the motivation and effectiveness of that policy. However, let us be clear, the policy had been agreed by Cabinet and it is no good No. 10 now distancing itself from it.

Perhaps the Minister can answer the following questions. First, can he outline why the Prime Minister ditched this proposal when the Government were so wedded to it a matter of weeks ago? Secondly, why was a decision taken to change the name of the Bill from the “Legal Aid and Sentencing Bill”, as it was called until late last night, to the Legal Aid, Sentencing and Punishment of Offenders Bill? What do the Government hope to achieve by tinkering with the words?

We know from the impact assessment provided with the Green Paper that removing the option of remanding offenders in custody for certain cases would save £30 million and 1,300 prison places. Does this proposal still remain and in what form?

On IPPs, how will the Government ensure the safety of our communities when considering which offenders ought to be released? Once again, the impact assessment tells us that the financial savings in doing this will be sizeable. Obviously the focus is on saving money. Today we learn that the noble Lord is to undertake an urgent review of IPPs with a view to replacing them. When there has already been over the past 13 months a Green Paper and a consultation, why is there a need for another review?

How does the noble Lord reconcile losing thousands of experienced front-line prisons and probation staff with the Government’s obvious desire to see, first, an increased number of offenders diverted into specialist drug, alcohol and mental health facilities and, secondly, more prisoners working, who will clearly need more supervision? How do those policies fit together? At this morning’s press conference, the Prime Minister said savings that would have been made by the 50 per cent proposals will be found elsewhere in the Ministry of Justice budget. Can I ask the Minister to explain to the House exactly where these savings will be found and when?

The proposals on legal aid that were mooted in the Green Paper have been heavily criticised across the board. There is room for legal aid cuts—we have certainly put up alternative proposals, as have the Law Society and others—but they are being criticised because of the attack on social welfare law. Does the Minister agree that these proposals, if implemented in legislation, will decimate social welfare law, making it impossible for the most vulnerable to get legal help for legal problems, including those relating to welfare benefits, debt, employment and all but the most extreme of housing cases? Does he agree that evidence shows that exactly this type of legal help that is now given through legal aid, when given early, can and does often solve the problems involved and thus save the state money when things otherwise descend downhill? Does he agree with NACAB, which says that a pound spent on welfare benefits advice saves £8.80 in future spending; that every pound spent on housing advice saves £2.34; and that every bit of debt advice saves £2.98? How can this policy possibly save public money?

More importantly than even the financial side, how does the noble Lord argue that the removal of access to justice—because that is what it is—from some of our most vulnerable fellow citizens is justified? How will these people be able to receive legal advice, who will it come from and how will their legal problems be resolved? They are effectively excluded from access to justice by deliberate government action. Why is that? The amount of money saved overall will be less than nothing. Many CABs, law centres and high street practices, which do a fantastic job—for comparatively little reward compared to other fields of law—looking after the poor and marginalised will have to close. Lord Bingham wrote in his book The Rule of Law last year that the,

“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

Yet this is exactly what the Government intend to do.

This House has always seen one of its roles as to look after the vulnerable and marginalised in our society. When this Bill comes from another place, I am sure this House will continue to do its duty as far as that is concerned. These proposals are not only financially illiterate but—and I choose my words carefully—morally outrageous. I wonder how the noble Lord, with his great tradition as a liberal and a man who is a great supporter of social justice, can give his support to these proposals.

Crime: Rape

Lord Bach Excerpts

Tuesday 24th May 2011 Lords Chamber

Asked by

[Lord Bach]

To ask Her Majesty’s Government what is their policy on sentencing for the offence of rape.

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

My Lords, the Government believe that rape is a very serious offence, with dreadful consequences for the victim. The seriousness with which the offence is viewed by the Government, Parliament, the courts and society at large is reflected by the fact that the maximum penalty is a life sentence and that the average determinate custodial sentence imposed is eight years.

[Lord Bach]

My Lords, I thank the Minister for his reply. However, does he agree that the careless and damaging remarks made last week by his right honourable friend the Lord Chancellor have undermined the confidence that victims have in the criminal justice system? The views expressed seemed hopelessly out of touch and out of date, and have offended many people, including victims of sexual violence. Will the Minister confirm that there will be no downgrading in the priority given to prosecuting those who have committed offences of sexual violence; and that the Government will not reduce the number of specialist rape prosecutors —now around 840 in number—employed by the Crown Prosecution Service over the comprehensive spending review period?

[Lord McNally]

I do not know who is damaging confidence most, if damage has been done. It certainly was not anything that my right honourable friend said. Anybody who analysed what he said would accept that. I was caught by a paragraph in the Stern review, which said:

“We need to look at rape victims as people who have been harmed, whom society has a positive responsibility to help and to protect, aside from the operations of criminal law. Whether the rape is reported or not, whether the case goes forward or not, whether there is a conviction or not, victims still have a right to services that will help them to recover and rebuild their lives”.

That is the policy of Her Majesty’s Government and we will stick to it.

Courts: Super-injunctions

Lord Bach Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord McNally]

I have to confess that the Ministry of Justice does not have a figure on the number of super-injunctions. I understand that the Ministry of Justice statistician, a post I was not aware of—

[Lord Bach]

The chief statistician.

[Lord McNally]

The noble Lord, Lord Bach, has more experience on this. The chief statistician is looking into the matter. We hope to be able to give those figures shortly.

Civil Legal Aid

Lord Bach Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Bach]

My Lords, I thank my noble friend Lord Beecham for instigating this debate and all noble Lords who have spoken in it. There can be no doubt that this debate is both timely and vital. It is timely because the Government are, we are told, close to announcing their decisions on their consultation paper of last November. It is vital because if the Government stick to their Green Paper proposals, the system of social welfare legal aid will be decimated, if not destroyed. The situation is as serious as that. Nearly 750,000 people will no longer be eligible for legal help. Huge swathes of social welfare law—in housing, debt, education and employment—will be declared out of scope. Legal help that catches problems early will no longer be available in many cases, and the eventual cost to the state, as we have heard, will be much higher.

These proposals are nothing short of an attack on the poor—no more and no less. They are the wrong cuts at the wrong time and hurt the wrong people. It is therefore hardly surprising that many groups have banded together to try to persuade the Government just to think again. This debate is part of that process. I pay tribute to Justice for All, the umbrella group that covers many groups that have taken up this cause, and to the Law Society and the Bar Council. I also pay tribute to many Members of another place from all political parties, who have said: first, that this is wrong; secondly, that there are alternatives; and, thirdly, that to implement the proposals as they stand would be disastrous, uncivilised, discriminatory and hugely counterproductive.

Of course, there must be cuts. We accepted that when we were in government, and we accept it now. Indeed, we cut legal aid, controversially in some cases. If we had been returned to government at the previous election, we would have made some cuts, but not as many, nor as fast as the proposals that we are discussing. We would probably have made cuts in the field of criminal law following the publication of our White Paper Restructuring the Delivery of Criminal Defence Services, which was published in March 2010. Those substantial cuts would have been controversial, but not as substantial as this Government’s. However, when we were in government we refused point blank to cut social welfare legal aid. Indeed, we increased it from £151 million in 2007-08 to £208.4 million in 2009-10—our last year in office.

We also raised the financial eligibility limit for civil legal aid by 5 per cent in 2009, making it possible for many more people to receive the legal help that they needed. Now the Government propose to cut eligibility significantly. The ministerial achievement of which I am perhaps most proud was that of saving the South-West London Law Centre from closure. At a time of economic difficulty it is madness to cut legal aid in this way, but the Government intend to do so. If legal aid does not give at least some access to justice for those who are dispossessed or disadvantaged, whether through poverty, bad housing, unemployment, low wages, the colour of their skin or their mental and physical health, what is the point of having a legal aid system?

The case has perhaps never been as well put as by Helen Grant, the new Conservative Member of Parliament for Maidstone and The Weald, in an article in a national newspaper in February this year. The article states that,

“as civil liberty is to the freedoms of our nation, civil legal aid is to the protection of its citizens. For some of our most vulnerable people, it is the only sword and shield in their armoury”.

Common sense and the expert research of Professor Hazel Genn and others, mentioned by my noble friend Lord Hart, tell us that early legal advice changes lives. We know that legal problems come in clusters and not singly and that a lack of such early and comprehensive advice can lead to problems escalating out of control, leading to relationship breakdown, unpaid and hopeless debts, and sometimes a decline into crime, with all the misery that that brings with it. Yet I fear that that will be one of the almost inevitable results of these proposals if they are implemented. Then there is the cost to the state and to all of us as taxpayers when no legal help is given. The savings that the CAB calculates would arise from spending £1 of legal aid money were mentioned by my noble friend Lord Beecham in his opening speech. The Government’s proposals are financially hugely counterproductive.

As has been said, the lawyers who practise this type of law are not well paid. Some of them have given up the possibility of well paid careers in other areas of law. Yet the Government plan to take 10 per cent from each modest fee that they receive for giving social welfare advice. We know that a number of CABs will not be able to carry on, and that private solicitors, who have been under pressure for some time, may be tipped over the edge. However, we should also state clearly that the law centre movement, which does so much for the dispossessed and underprivileged in our society, is likely to be crushed. There is a proposed 77.6 per cent reduction in funding for legal help and an 83.6 per percent reduction planned in the number of legal help cases, all at the same time as local authority spend is falling. Whether intended or not, these proposals may well destroy law centres, with a disastrous effect on their clients.

Why these proposals? On the whole, previous Conservative Governments have been generous in their support for legal aid. The Liberal Democrats have demanded more money to be spent on legal aid—they demanded that of us and criticised our cuts. They, too, have argued for social welfare law. How can Ministers have signed up to these proposals? My own view is not that Ministers want to play the role of the wicked uncle who wants to destroy anything good he comes across. It is simply, and here I follow my noble friend Lady Kennedy of The Shaws, that they just do not get it. Their view of legal aid is very limited and old-fashioned, so they do not see its relevance to social welfare law. Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty's Government should stop this 1984 Orwellian-type misuse of language.

In my view, however, the Minister who is to reply to this debate does get it. His whole political history shows him to be someone who understands the importance of what is about to be destroyed. Our request to him is: please fight these proposals within your department and do not let these fundamentally anti-liberal measures be implemented. He enjoys a huge reputation in this House, both personally and politically. If he were to succeed in mitigating these proposals, that reputation would soar even higher. Why should he bother, he might ask? Legal aid is not his portfolio but someone else’s. He should bother because this is not fundamentally a legal issue at all. It is not just one for lawyers, in government or outside it, and it is not one for non-lawyer Ministers and non-lawyers generally to shy away from. It is a simple issue about right or wrong and justice or injustice. In the end, I say to the noble Lord, it is a simple question of morality.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Bach Excerpts

Friday 13th May 2011 Lords Chamber

[Lord Bach]

My Lords, I can be brief on behalf of the Opposition. We support the Bill and warmly congratulate the noble Lord, Lord Hunt of Wirral, on the calm, reasonable and above all clear way in which he moved this debate. We have come to expect that of him over the years and he did not disappoint today. We are grateful to him.

I am sorry that he has just left the vicinity, but congratulations are certainly due to the right honourable gentleman Greg Knight, the Member of Parliament in the other place. He and I were young lawyers together in Leicester in a former life. He was even foolish enough on one or two occasions to instruct me in criminal matters. We were also colleagues on opposite sides of Leicester City Council for some time many years ago. He deserves congratulations particularly today because, when the Government refused—for good reason or bad, I know not—not to proceed with the draft Civil Law Reform Bill, he took it upon himself, having been successful in the Private Member’s Bill ballot in the other place to put into effect Part 3 of that draft Bill and to take it through the Commons. He deserves the thanks not only of Parliament but of the wider public.

I was privileged as a Minister to take through two Law Commission Bills—the noble Lord, Lord Hunt of Wirral, will remember them—under the new procedure that was experimented with and is now in practice. To answer the noble Lord, Lord Marks, Law Commission Bills can be brought forward by a shortened Committee method in this House and then go to the Commons. They have to be uncontroversial Bills, of course, but the procedure has worked twice so far rather well. I hope that it will be used again quite soon.

While I am on my feet, I will speak to the extraordinary high skill of the civil servants who advise the Minister—the noble Lord, Lord McNally, at the moment and me previously—on these complicated and difficult Bills. They have no doubt talked to the noble Lord, Lord Hunt, and to Mr Knight as well. They are a very high-powered group who are a great compliment to the Civil Service generally and play an important role that is sometimes understated. That needs to be said from time to time. It is a great reflection on the Civil Service that it can provide people such as them to advise Ministers. They give careful, skilful guidance on tricky matters of law. I would have been completely lost in the two Bills that I took through the House without their constant—I was going to say hand-holding—guidance. I am quite sure that it is quite different with the noble Lord, Lord McNally, who will be on top of this brief completely without any help at all.

We think that the Bill deserves support. We hope that it is carried through this House as quickly as possible. It passes, as the other speakers all said, any tests of fairness or justice with flying colours. In the end, that is surely the important point.

I have two matters for the Minister, and I do not want to put him on the spot, but why did the Government not proceed with the Civil Law Reform Bill? Secondly, the noble and learned Lord, Lord Scott of Foscote, asked how far the Forfeiture Act goes. That is a matter of some importance and needs to be sorted out, if not today then before the Bill becomes an Act. From our side, we wish the Bill well and hope that it gets its Second Reading.

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

My Lords, from the mild titter that went round the House when the noble Lord, Lord Bach, said that I would not need the expert advice that he had needed, we can all assume that there was a little irony in that statement. I know that there was no truth whatever in it. I share his admiration of the quality of advice that I and other Ministers receive on these matters.

I also pay tribute to Greg Knight for his success in piloting the Bill in the other place. I must admonish those colleagues who referred to the presence of Greg Knight in the Chamber today. That is quite against the code and therefore I would not dream of making that point. However, I am glad that he will have heard what has been said.

[Lord Bach]

I was very careful to say that the honourable gentleman was in the vicinity of the Chamber because I was about to fall into error, I know.

[Lord McNally]

Undoubtedly that is the kind of skill that made the noble Lord such a successful lawyer in Leicester, whether instructed by Mr Knight or any other solicitor.

I also pay tribute to someone who has always been my friend, but in the past year has been my noble friend Lord Hunt. It may not be commonly known that my noble friend and I were once on the executive of what I always thought was a modestly titled organisation called the Atlantic Association of Young Political Leaders. We have remained friends and close colleagues ever since.

I am very pleased to be able to respond to the debate. I am the Minister responsible for the Law Commission, so it gives me particular pleasure to confirm the Government’s support for the Bill, which will implement, albeit with some modifications, the recommendations made by the Law Commission in its 2005 report, The Forfeiture Rule and the Law of Succession. The Government are very grateful to the commission both for its expert work on this subject not only in the formulation of its proposals but in the ongoing support that it has given and continues to give to the Government on the Bill, and for its wider ongoing work. The expertise of the Law Commission and the House of Lords is a productive marriage in helping us to simplify, clarify and modify our law.

Before I turn to the Bill, let me respond to the points made, particularly by my friend Lord Marks and by my noble friend Lord Hunt in his opening remarks, about the Law Commission. The work of the commission has been a major success, but the commission is facing the inevitable difficulties posed by a 33 per cent cut to its budget. There is really no room for manoeuvre, given the scale of cuts needed. The cut of 33 per cent is consistent with what is being applied to administrative budgets generally.

However, we are determined to improve on the 68 per cent implementation rate. I am confident that the new House of Lords procedure for Law Commission Bills, along with the measures included in the Law Commission Act 2009—which my noble friend Lord Marks referred to—will help in that regard. While we must be realistic about priorities at a difficult time such as this, I hope that the protocol on best practices will go some way towards ensuring that delays become a thing of the past.

The Law Commission is currently considering proposals for its 11th programme of work, which will soon be put to the Lord Chancellor for approval, as set out in the Law Commission Act 1965. This programme of work will be the first to be agreed under the terms of the protocol. I am confident that in the future delays, both in responding to the Law Commission and in implementing proposals that are accepted, will be reduced as a result. I hope that that is helpful to colleagues. I frequently say in the department that the Law Commission is highly respected in this House, which is eager to use both the great expertise that it has and the procedures that we have adopted to help in expediting Law Commission recommendations.

On the intervention of my noble friend Lord Flight, I will try to respond but I hope that my noble friend Lord Hunt will fill in any gaps. It is interesting that, although the Bill looks like a very minor piece of law, 200 cases are affected by this anomaly each year, as my noble friend Lord Flight informed us. It is very difficult to say whether I can give him guarantees that there are no other unknown quirks or consequences because, if there are unknown quirks or consequences, I do not know about them.

As always, we will continue to keep a close eye on the consequences. The point about death by dangerous driving that was raised by the noble and learned Lord, Lord Scott, is just one such issue that we will try to be alert to, as indeed is the issue of mercy killing. Those are two points where, clearly, there could be issues. I am not sure that the Code Napoléon is quite as close to being the law of our land as my noble friend Lord Flight in some of his darker moments might imagine, so I would not worry too much. As Fred Peart used to say when he was at this Dispatch Box, “Not next week”.

On the question whether there are unforeseen consequences or issues of the sort that have been raised by the noble and learned Lord, Lord Scott, and by my noble friend Lord Flight, we have made a detailed study with the Law Commission. We also had a very full consultation, and we will continue to keep these matters under study.

As I said, the Government support the Bill. The law of succession in this instance governs who inherits what when a person dies. Where there is a valid will, the general policy of the law is that the deceased person’s last will and testament should determine who is to inherit what from his or her estate. In other cases, where there is no valid will, the statutory intestacy rules prescribe the order of inheritance. In brief, the general policy of the intestacy rules is that a surviving spouse or civil partner has first call on the estate for his or her statutory legacy and that otherwise the property of the deceased should pass to closer blood relatives of the deceased before more distant ones. The children of the deceased, for example, should be preferred to siblings of the deceased.

The Bill does not seek to change these general principles. In fact, despite its technical complexity—I might say that I thought that I understood the Bill clearly until my noble friend Lord Hunt started explaining the technical complexities—this Bill is a very modest measure that addresses three specific problems in the law of succession and proposes clear solutions to all of them.

First, the Bill addresses the question of who should inherit when a person is disqualified from inheriting because he or she has caused the death in question. This disqualification is automatic and is effected by the rule of law known as the forfeiture rule. The operation of this rule is not affected by the Bill. As my noble friend Lord Hunt explained, the problem with the existing law was highlighted in the 2001 Court of Appeal decision. Put simply, the problem is that, where a person forfeits an inheritance on intestacy because he or she has actually killed the person from whom he or she would have inherited, his or her children will also be disinherited because the statutory trusts that apply under the intestacy rules prevent them from doing so. The forfeiture rule thereby seems to disinherit not only the criminal but the innocent grandchildren of the victim.

This problem is not confined to intestacy. For example, if a parent leaves a will giving property to his or her son and the son kills the parent, the son cannot inherit. If the parent’s will also said that the son’s children were to inherit if the son died first, the children would not be able to inherit in place of their father because he did not die before their grandparent. Of course, if the will said that the grandchildren could inherit in place of the son, then, irrespective of the reason why the son could not, the children would be able to inherit, but I doubt that many wills are made with the consideration that the proposed recipient might turn out to be his or her killer. Similarly, if there is a will giving a gift to a child of the testator without any further provision, the law implies a term that the gift will pass to his or her children if he or she predeceases the testator. If the testator’s child forfeits his inheritance, his or her children—the testator’s grandchildren—will not be able to inherit, because their parent did not die before their grandparent.

Secondly, the Bill addresses the very similar issue of what happens when the inheritance is rejected by disclaimer. Here, just as in the case of forfeiture, whether the succession is testate or intestate, anyone claiming through the person who rejected the inheritance, such as his or her children, will not be able to inherit unless the will provides to the contrary.

Finally, there is a rather unusual situation, which I think is extremely rare. It occurs where a person under the age of 18 is prospectively entitled to inherit property under the intestacy rules, perhaps from his or her parent, but dies before reaching the age of majority. If he or she dies without having married or entered a civil partnership and leaves children who were alive, or at least in the womb, at the date of the death of the original intestate, the children, who are the grandchildren of the original intestate and who are necessarily minors themselves, cannot inherit from their grandparent in place of their deceased parent. This is because under the technical rules that apply to the statutory trusts applicable on intestacy, their parent did not attain a vested interest in the property of the original intestate. This anomalous outcome, rare as it might be, discriminates against those children.

In all these three cases, the Bill will solve these problems by deeming the person who loses the inheritance, by forfeiture, by disclaimer or by dying too young, to have died before the person whose estate is being distributed. This means that if the person in question died intestate, the children of the person losing out will be able to inherit under the statutory intestacy rules and, if there is a will, that the actual or deemed wishes of the testator will prevail. This will bring the outcomes in these three situations more into line with the general policy of the law by giving priority to the wishes of the testator as expressed in a valid will or in other cases by preferring closer blood relatives over more distant ones.

Both the noble Lords, Lord Flight and Lord Bach, referred to the fact that the Bill differs in some respects from the draft Law Commission Bill published in 2005. It also differs from the equivalent provisions in the draft Civil Law Reform Bill, published by the previous Government in 2009. The main difference is that those earlier draft Bills contain specific trust provisions that are intended to ensure that in forfeiture cases the criminal was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. These special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee in the other place and from people who replied to the consultation from the Ministry of Justice on the draft Civil Law Reform Bill. We have also discussed them in detail with the Chief Chancery Master, Jonathan Winegarten, at the Law Commission. We agree with the Justice Committee that minors who inherit following forfeiture should have their inheritance protected and that all minors should have suitable protection under the Bill. However, from our more detailed consideration of how the special trust provisions originally proposed would work, it is clear to us that they would be problematic and expensive to operate.

In our view, the existing law, which already imposes a trust for the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection. The proposed special trust provisions would not in fact increase this protection. The Law Commission, I would add, is content with the Bill in its present form.

The issue raised by the noble and learned Lord, Lord Scott, about dangerous driving and mercy killing will need to be kept under review. The courts will have a discretion to disapply the rule of forfeiture in the case of mercy killings and will consider the individual circumstances of the case in all cases other than murder. That has been a long-standing approach. However, this underlines the benefit of a debate such as this on a measure such as this one, because in addition to enabling us to support the Bill, which I warmly do, it allows us to tease out some of the issues that need to be kept under review as we move forward. It has also given me the opportunity to lay out—I hope clearly—to the House the ongoing support of the Government for the Law Commission and its work.

Youth Crime and Anti-social Behaviour

Lord Bach Excerpts

Wednesday 30th March 2011 Grand Committee

[Lord Bach]

My Lords, I congratulate the noble Lord, Lord Dholakia, on securing this debate, and all other noble Lords who have spoken in it. It is all too short but it is appropriately timed in a week when the House has overwhelmingly voted against the abolition of the Youth Justice Board.

Time for a fresh start is a remarkable report and the commission is to be congratulated on its hard work, its passion and its insistence that, although the problems of youth crime and anti-social behaviour are complex and difficult, we should never give up the struggle to find better ways of dealing with these issues. A central theme of the report is the need to expand restorative justice, an approach whose time has come, in the words of Anthony Salz, the chairman, in his introduction.

The organisation Victim Support—we should never again forget the importance of victims and the need to make them part of our criminal justice system—believes that restorative justice should be an important element of the youth justice system. At present, police forces use restorative justice for out-of-court disposals, but there is a lack of consistency nationwide in their approaches. Victim Support complains that it is not routinely used in serious crime when it could be. While the Government’s Green Paper, Breaking the Cycle, contains warm words, it seems to lack detail on how restorative justice will be delivered and implemented. No doubt the Minister will help us with that. Indeed, Victim Support is supporting a pilot called Restorative Justice, Gloucestershire, which I think all those who have spoken will want to know more about.

I do not know how widely it is known in the Grand Committee that in the first few years of the previous Government the Treasury in particular, under the then leadership of the right honourable Gordon Brown, gave a large sum of money to the Youth Justice Board to fund a large-scale inquiry into the value of restorative justice. Some years later, a seminar was held at 11 Downing Street, where a collection of very distinguished people, including judges—I see the noble and learned Lord, Lord Woolf, in his place; he was one of those present— distinguished academics, public servants and others in this field were present to hear about extraordinary examples of restorative justice from offender and victim alike. I am told that those who were present will never forget the young offender who had taken a pistol into his school because of bullying and, in fact, nearly got shot himself by the police. They heard about the youths who trashed a village store and came face to face with the shopkeeper and the other villagers, and, above all, about the house burglar and the burgled who fought on the stairs in the burgled person’s house and afterwards became best friends. That is all great stuff but it is important not to romanticise restorative justice. It must be a hard-headed, realistic alternative to other disposals. I want to ask the Minister a question. It has come to my attention that restorative justice projects in London are to come to an end because funding is no longer to be given to them. Can the Minister confirm or deny that in his response?

In the context of this report, the proposed abolition of the Youth Justice Board is an outrage. Indeed, it was described in the debate the other day as a “sacrilege”. I am sorry that neither the noble Lord, Lord Dholakia, nor the noble Baroness, Lady Doocey, were able to vote against the abolition, but I understand party loyalty too. However, they did not vote for it either and, if I may say so, I respect that view very much. I know that their hearts are in the right place. However, how can the Government be taken seriously when they are, I am sure, keen to find ways of improving youth justice and helping young offenders, while at the same time they are set on abolishing the Youth Justice Board—a body that has proved its value over the years, as Ministers themselves have said in debate? It is by actions, not warm words in documents, that this Government, as with all Governments, will be judged.

I end by talking about prevention, which is one of the aspects referred to frequently in the report. In a summary under the heading “Prevention”, the report says:

“It is important to involve a young person’s family in solutions to their problems. Sometimes a young person gets involved in crime partly because of problems at home, for example, they may have parents who struggle with parenting, who don’t provide good role models, who are abusive, neglectful or not around, who have mental health problems or are addicted to alcohol or drugs. Some parents need help with things such as these. Responses that involve the family can be a good way of solving some of the issues that push a young person into crime”.

I emphasise the line:

“Some parents need help with things such as these”.

However, the Government intend to remove legal aid from early advice on a whole range of issues that so affect those types of parents. Welfare benefits will be removed from scope as will debt, much of housing, employment and education.

Everyone who has spoken in this debate knows how early advice to families and individuals can save much worse from happening later on, including family breakdown, homelessness and—for the purposes of this debate—that descent into anti-social behaviour and then more serious crime. This sort of advice is to be decimated. To remove the advice that is available at the moment is both morally wrong and hugely counterproductive in helping and keeping young people out of trouble. The Government should now abandon those proposals because they are very much linked with youth crime.

Justice: Civil Litigation Reform

Lord Bach Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Bach]

I begin by thanking the Minister for repeating the Statement made by his right honourable friend and for giving us advance sight of it. We have a number of questions, mainly around the first part of the Statement. We look forward to the second part on the commencement of the consultation period, and broadly welcome the fact that there is to be a consultation period on those issues.

As regards the first part, we of course accept that costs in civil proceedings are very much worth investigating; indeed, we did so when in government. I am sure we all agree that those suffering injury through the negligence of public and private bodies and who cannot afford to fund actions privately must have recourse to the civil justice system. Our fear is that these plans go so far in trying to keep down costs that some claimants with good cases will find it difficult, if not impossible, to find a lawyer who will take on their case. Of course, the devil will be in the detail of today’s announcement, and I ask when it is intended that legislation will be introduced. Will it be part of a Bill that is rumoured to be coming from the Ministry of Justice within the next few months?

To justify his announcement, the Justice Secretary refers in his Statement to Lord Justice Jackson’s monumental report. However, have Her Majesty’s Government taken into account Lord Justice Jackson’s view that his proposals should be seen as a package and should not be subject to cherry-picking, although is that not exactly what the Government have done in this announcement? Will he also take into account Lord Justice Jackson’s strong desire to keep civil legal aid for clinical negligence and housing cases, which are currently very much under threat from the Government’s proposals? I quote from page 70 of his final report:

“I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility”.

Is it fair to allow claimant solicitors to recover up to 25 per cent of their costs from the damages that a claimant recovers when the increase from defendants to claimants in compensation will be only 10 per cent and will apply only to general damages, which as the House will know, are sometimes only a fraction of the total damages? Why should someone who has suffered the trauma of an injury at work be told that some of the money they have justly received to compensate them is to go to their lawyer? Do we really want to go down the route of contingency fees? I know that they existed under our law for a short time but they no longer do. I think that at some stage the House will want to debate the whole issue of contingency fees and whether they are an appropriate course for the English and Welsh legal system.

Has the Justice Secretary had a chance to assess the road traffic accident portal scheme introduced by the previous Government to reduce costs? This uses fixed fees and efficient processing to limit costs, and it came into force in March 2010. Does the Minister accept that it has reduced by half the cost of 75 per cent of personal injury cases? Expanding the scheme to cover personal injury claims would, we believe, save costs. Do the Government agree?

The Government have said that an aim of the reforms is to reduce the costs that defendants have to pay. Of course, many defendants are insurance companies. In the light of the reforms, can the Minister say what reductions the Government expect in insurance premiums? Can he confirm whether there is an impact assessment of how the changes will affect access to justice, costs to defendants and reductions in insurance premiums?

Next, is the Minister concerned that, although there will be limitations on claimants’ ability to bring a case and on the costs incurred by their solicitors, there will be no such controls on a defendant in defending a case? Does that not raise the question of possible inequality between the two sides in a case?

In this House we all agree that a fundamental principle of our justice system should be proper access to justice. As a Government, we agreed with senior judges such as the noble and learned Lord, Lord Judge—the Lord Chief Justice—as well as Lord Justice Jackson and others, that the costs of civil litigation were sometimes excessive. We would all like reduced litigation costs and, very importantly, alternatives to litigation and particularly to the courts to be found wherever possible.

Our fear is that the proposals could restrict access to civil justice, particularly for those who do not have their own means of funding—rather like the Government’s proposals on cutting legal aid in social welfare law. It could reduce access to justice rather than the opposite, which is our desire—to improve it. It will be on that key issue of access to justice that we will hold the Government’s actions to account.

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Bach, both for his welcome for the discussion on the county court proposals and for the general level of his questioning. I think that if we are to touch a system like this, there is bound to be some concern about whether there will be a reduction in access to justice. We are looking at that carefully in our impact assessment and in other approaches. On the question of legislation, we intend to legislate as soon as possible and as soon as there is a suitable vehicle.

I do not think that we have cherry-picked Lord Justice Jackson’s report. We have retained a certain hold-back on protecting clinical negligence claimants in the help that they will get. Lord Justice Jackson made 109 recommendations, and the Government are taking the reform of conditional fee agreements as a matter of priority because of the potential cost saving for the Government and others. He conducted a year-long review of current arrangements and considered the likely impact of these proposals. Much of the necessary data are held in private hands by lawyers and defendants in civil litigation. Data were provided during Sir Rupert’s review and further data were received by the Government during the consultation. The Government’s initial impact assessments were published alongside the consultation and comments were specifically sought on the assumption. A final impact assessment was published alongside the Government’s response. Our impact assessment shows that successful claimants in personal injury cases will generally end up in a similar position to now, although overall most will gain.

As the noble Lord said, the road traffic scheme, to which the noble Lord, Lord Young of Graffham, also referred in his report, seems to have been a considerable success, and we are examining ways of how it could be extended. On the impact on insurance it is difficult to be precise, but it is interesting that today the Association of British Insurers has issued a statement saying that it expects insurance costs to fall as a result of these reforms.

Why should claimants pay? Claimants with meritorious claims will still be able to bring them. The Government believe that it is important that people with serious injuries should be able to receive compensation for negligence. That will continue. Indeed, the general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent under these proposals and there will be an incentive to reduce costs compared with now, such as improving incentives to settle. This will improve justice overall.

As the noble Lord will know, one of the main criticisms of the post-2000 operation of this scheme was that claimants had no real incentive to put a check on their legal costs on the assumption that they would never be responsible for it. The Government also believe that damage-based agreements will provide an additional method of funding for claimants. Like conditional fees, they are a type of no-win no-fee agreement under which lawyers are not paid if they lose a case but may take a percentage of the damages awarded to their client if their case is successful.

I hope that I have covered most of the points that the noble Lord covered. If I have not, I will give him opportunity to intervene again. In aid of these proposals, I call upon two statements. One was made by Mr Jack Straw, who originally commissioned the Jackson report.

[Lord Bach]

No, he did not.

[Lord McNally]

Did he not? Sorry. You were there; I was not. Thank you very much. Mr Straw said that the Jackson proposals,

“are designed to reduce the costs of civil litigation overall. Those costs have risen too high, and that is a bar to proper access to justice”.—[Official Report, Commons, 9/2/10; col. 740.]

Perhaps he was pointing to what the noble Lord, Lord Bach, just said. As the noble and learned Lord, Lord Neuberger—the Master of the Rolls—commented:

“Critics do not appear to have been able to provide an alternative model for a comprehensive package to tackle what seems universally acknowledged to be a non-sustainable problem of rising civil litigation costs. The time for analysing the problem has come to an end. The time for action has come”.

The Lord Chancellor has brought these proposals forward in that spirit.