Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013
Debate between Lord Bach and Lord McNally(10 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
I think there is a line in TS Eliot that says, “Woe unto me when all men praise me”.
This debate gives me the opportunity to clarify the position in the regulations laid before the House on 7 March concerning the issue of capital in relation to financial eligibility for civil legal aid. I will certainly respond to the debate, as I did last Thursday. In fact, I reread the debate and my reply. I think that I covered most of the points raised by the 14 lawyers and two others who contributed to that debate.
The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 set out the rules that the director must apply to determine whether an applicant’s financial resources are such that the applicant is financially eligible for civil legal services under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. These regulations broadly replicate the effects of Parts 1 and 2 of the Community Legal Service (Financial) Regulations, which were made under the Access to Justice Act 1999. Indeed, a number of the points that were raised tonight were in complaint of parts that replicated that Act.
However, as part of the Government’s consultation in 2010, entitled Reform of Legal Aid in England and Wales, the Government proposed several changes to the rules concerning financial eligibility and contributions for civil legal aid. One of these changes was the removal of capital passporting. Two others were to cap the subject matter of the dispute disregard at £100,000 for all forms of civil legal services, and to increase the levels of income-based contributions to a maximum of 30% of monthly disposable income. Before 1 April, someone receiving certain income-based benefits, such as income support, could have up to £16,000 disposable capital but be automatically passported through the means test and be deemed eligible for legal aid. However, a person not receiving a passporting benefit, and who had more than £8,000 in disposable capital, would be ineligible for legal aid.
It is inequitable that applicants with similar levels of capital may or may not be eligible for legal aid depending on the source of their income. To achieve greater internal alignment and fairness to all applicants for legal aid, the Government proposed that in future people in receipt of passporting benefits should have their capital assessed in the same way as it is assessed for others, although they would still be passported through the income side of the test.
The Government’s response to that consultation in June 2011 confirmed that they would take forward the proposal, and this is reflected in these new regulations. Therefore, under the new rules, all applicants for civil legal aid are subject to the same capital eligibility test. This means that any applicant with disposable capital above £8,000 will be ineligible for civil legal aid, regardless of whether they are in receipt of benefits. If the applicant’s disposable capital is more than £3,000 but does not exceed £8,000, they will be required to make a contribution from that capital towards the costs of the legally aided services.
Ensuring that the capital assets of all applicants are subject to the same eligibility test helps to focus limited public legal aid funds on the most financially vulnerable clients and means that those who can afford to pay, or can contribute towards the costs, do so. It is estimated that assessing all applicants’ disposable capital will result in approximately £10 million a year of savings in steady state. This is not insignificant against a backdrop of continuing pressure on public finances, where we need to continue to bear down on the cost of legal aid to ensure we are getting the best deal for the taxpayer. Disposable capital comprises all capital assets, including equity in land and buildings, money held in a bank, investments, stocks, shares and the monetary value of valuable items. However, there are certain disregards in calculating the amount of an individual’s disposable capital, including for mortgages and for equity in an individual’s home.
It may be helpful if I explain what these are. If an applicant is contesting property with their partner, their share of capital is assessed individually. Any outstanding mortgage, up to the value of £100,000, is subtracted from the value of the property. Where assets are in joint names, they will generally be treated as owned in equal shares. Thus the remaining equity is divided equally between the parties. The first £100,000 of the applicant’s equity is then disregarded under the subject matter of the dispute rule. The applicant then receives a further £100,000 equity disregard if the property is their main dwelling. If the remaining equity exceeds the £8,000 capital limit, the applicant will be financially ineligible for legal aid.
In practice, this means that only those applicants who are contesting large amounts of capital, or homes registered in joint names that are valued in excess of £500,000, and where there is a mortgage of at least £100,000, are excluded on capital grounds. We do not think it unfair or unreasonable that people who are disputing substantial assets fall outside eligibility for civil legal aid.
Where a property is not the subject matter of the dispute, is in an applicant’s sole name and worth more than £208,000, that applicant would not normally be eligible for legal aid. However, a further disregard of up to £100,000 would apply if the applicant was aged 60 or over and had monthly disposable income of less than £315. The financial eligibility criteria for civil legal aid are designed to focus our limited resources on those of moderate means and with moderate amounts of capital. This helps to ensure that we can continue to provide services for vulnerable persons, such as victims of domestic violence, children at risk and those with mental health problems.
For domestic violence and forced marriage cases where the applicant seeks an injunction or other order for protection from harm to the person, or seeks committal for breach of any such order, there is a power to disregard the eligibility limits. In this way, we extend eligibility to legal aid for victims of domestic violence irrespective of the value of any property that the individual may own. A contribution may be required from income or capital.
The eligibility waiver for victims of domestic violence seeking protection from harm is a significant concession. This measure improves access to legal aid for domestic violence victims by extending eligibility beyond the original limit. It means that immediate legal advice and representation is available for those who need it and who otherwise would not qualify under the normal eligibility regulations. For those applicants required to pay a contribution, as legally aided clients they will benefit from the reduced cost of representation under legal aid rates as opposed to private rates.
There is a concession for pensioners who are in receipt of an income of £315 a month or below. Disregards of between £10,000 and £100,000 can be applied to any capital assets that they hold, including both property and savings, depending on the level of their income. For example, a monthly income of £76 to £100 attracts a capital disregard of £70,000. This is in addition to the allowances that normally apply, such as the equity disregard. Pensioners who receive a passporting benefit are entitled to the maximum disregard of £100,000.
The financial eligibility criteria for civil legal aid are designed to focus our limited resources on the poorest people. Bringing the capital rules for those receiving benefit into line with the rules for those who are not will help to do that, and will improve the fairness of the system. The substantial provision for disregards that I have outlined will ensure that an appropriate degree of sensitivity to individual circumstances is maintained, in particular as regards capital in the form of equity in the home. This is a sensible and reasonable measure.
The noble Lord, Lord Bach, made a number of points about the difference in the capital tests. Legal aid is not a welfare benefit and should not necessarily be treated in exactly the same way as universal credit, which is a working-age benefit. This is reflected in the different functions of income support and legal aid. The former is intended to lift people out of poverty over the long term while not penalising people for saving, while the latter is for people required to deal with a short-term legal issue and the associated expense.
The noble Lord, Lord Pannick, said that our LASPO reforms have reduced legal aid to skeletal proportions. I remind the House that we are talking about an exercise that has brought legal aid down from £2.1 billion to £1.5 billion. Neither the noble Lord, Lord Bach, nor the noble Lord, Lord Pannick, do their case any good by pretending that a system that will still spend something like £50 million on welfare legal aid and £1.5 billion in total can be described as “skeletal”. The noble Lord, Lord Bach, said how generous the Labour Government were in 2009. In 2010, we had to take some very tough decisions. Again, I question whether the noble Lord, Lord Bach, has any authority to encourage us to believe that in 2015 a Labour Government would try to restore any of these changes to legal aid.
I hear what was said by the right reverend Prelate and the noble Baroness, Lady Deech. However, they do not do the cause that they espouse—desiring to help the poorest and most vulnerable in our society—any good by arguing that these changes, which will affect people with quite substantial assets behind them, are not the right priority in the circumstances in which we find ourselves. The noble Baroness, Lady Deech, mentioned litigants in person. We are monitoring the impact of litigants in person. However, as I pointed out to the noble Lord, Lord Bach, in a more recent exchange we had, LASPO has been in practice for just over 100 days. He has been forecasting perfect storms and disaster for at least a year. We are keeping a close eye on these things and will monitor these various issues. However, the constant argument of disaster does not serve anybody. The very first Statement I made from this Dispatch Box was to the effect that if a part of your spending is directed at the vulnerable and the needy and you cut it, of course you will affect the vulnerable and needy. In those circumstances we have tried to make sure that we concentrate the money we have available where it is most needed. I will have a look at the Social Fund disregard and will write to the noble Lord—unless it was in that bit of paper that was passed to me. Even if it was, I will write to him.
This has been an interesting debate. The modest changes that we have made to the financial eligibility rules for civil legal aid are consistent with the fundamental objective of our reforms. We need to continue to think carefully about how taxpayer-funded money is spent and focus legal aid on the highest-priority cases and those most in need, while delivering the savings needed to address the national financial deficit. I hope that I have covered most of the questions raised in the debate, and I hope that the noble Lord, Lord Bach, will agree to withdraw his Motion.
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate, in particular the Minister for the trouble he has taken to respond to the debate. I am grateful to all noble Lords, particularly the noble Lord, Lord Pannick, for his extraordinarily flattering remarks, which were somewhat exaggerated. However, it was very good also to hear from the noble Baroness, Lady Deech, and from the right reverend Prelate the Bishop of Norwich; the Government should listen with some care to the remarks that he made. I am grateful, too, as always, to my noble friend Lord Beecham for summing up the Opposition’s view so clearly and crisply.
We should remember that we are discussing areas of law where the Government decided that legal aid should continue, not those areas of law where they thought that legal aid was completely meaningless or was not legal or appropriate. These are areas where people’s need for legal aid is acute: for instance, housing repossession, domestic violence or community care. With these regulations the Government have said on the one hand, “These are the areas where legal aid is appropriate”, but on the other, “Those of you who may be poor in income terms but have a small amount of capital cannot take advantage of where we are keeping legal aid in scope”.
That is not a satisfactory position for the Government to take. To say that what has been taken out of legal aid—particularly out of social welfare law—is skeletal seems to be an overstatement rather than an understatement when we look at what is left in scope compared with what has been taken out, which includes all welfare benefit social welfare law, all employment social welfare law, the vast majority of housing social welfare law and nearly all debt social welfare law. The word “skeletal” is not wrong at all.
Legal aid is part of our welfare system and should be so. It is part of our social security system and a protection for all our citizens, or so it ought to be. That was the idea when it was first formulated—an idea that has grown up with Governments of all persuasions over the past 60 years. It is a great shame to hear the Minister say that it can be completely divorced, as it were, from the rest of the social security system. It cannot be: it remains a protection for all of us.
These regulations make the position more complicated, more costly, more unfair and more inflexible. That is not satisfactory. Of course, I am tempted—as I always am—to divide the House on the issue. Noble Lords have spoken in pretty clear terms of what is felt around the House. However, the House has probably voted quite sufficiently in the early part of this evening. We have had the debate and will be able to read it in Hansard. I have no doubt—I know that the Minister will look forward to this—that we will come back to these issues in due course, but probably after the summer rather than before. I beg leave to withdraw my Motion.
Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1
Debate between Lord Bach and Lord McNally(10 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, post-legislative scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take place, as is normal, three to five years after Royal Assent. However, the Ministry of Justice will carry out a variety of exercises to monitor the impact of the Act from now on.
Lord Bach
My Lords, I am grateful to the Minister. However, does the evidence available not point clearly to a world where not-for-profit organisations will be decimated, and their clients—often the poor, disadvantaged and sometimes disabled—will no longer have access to legal advice? Just look at what is happening already. Birmingham Law Centre is closing, the well renowned Mary Ward Centre in London, which had 800 welfare benefit cases last year, has precisely nought at the moment, and Coventry Law Centre—I declare my interest as patron of that organisation, which has a superb reputation—has had to turn away from reception at least 350 people who had housing, immigration, debt, employment and family legal issues. I put it to the Minister that this is not good enough for a country that, until this legislation, could pride itself that its legal system tried to be fair to everyone. What are the Government going to do about it?
Lord McNally
My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.
Legal Aid
Debate between Lord Bach and Lord McNally(10 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the reasoning behind the proposed changes is that they will ensure that contract holders have enough certainty about work volumes so that efficiencies and economies of scale are achievable. However, we are carefully considering the consultation responses to this proposal.
Lord Bach
My Lords, I thank the Minister for his Answer and confess to being somewhat—a little—encouraged by it. The choice of lawyer is an essential part of our criminal justice system, as of course is the presumption of innocence. Does the Minister agree with his right honourable friend the Lord Chancellor’s justification of the proposal to abolish choice of lawyer, given in a recent interview in the Law Society Gazette? That seemed to be based on the absurd principle of “too thick to pick”. Or, does he agree with his right honourable friend the Deputy Prime Minister and leader of his own party, who is quoted as saying last weekend that it would be “perverse” to go ahead with this proposal? He cannot agree with both. What is the Government’s position?
Lord McNally
The Government’s position is that we put forward a model for competition, as proposed in our transformed legal aid consultation. That said that the client would generally have no choice in the provider allocated to them but that, in exceptional circumstances, a client might be permitted to change their provider. We put that matter out for consultation. As I indicated in my Answer, we are now considering the responses to the consultation and will come forward with further proposals.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
Debate between Lord Bach and Lord McNally(11 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—
Lord McNally
Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.
Lord McNally
Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.
Lord Bach
I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.
For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.
The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—
Lord McNally
I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.
Lord McNally
Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.
Lord Bach
I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.
If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.
Justice: Legal Advice
Debate between Lord Bach and Lord McNally(11 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, these matters were assessed as part of the impact assessments, which were published alongside the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Lord Bach
My Lords, I thank the Minister for his reply as far as it goes but I do not think it is very full on detail. It is now only 21 days until civil legal aid effectively disappears, affecting access to justice for perhaps hundreds of thousands of people every year. What do Her Majesty’s Government think will happen to the disabled person, for example, who wants to appeal his or her Atos decision, or the person who needs housing advice but cannot get it because the local Shelter housing advice centre has been forced to close, as today’s newspapers report? What are the Government’s contingency plans when unadvised and unrepresented clients flood courts and tribunals? No one can say the Government have not been warned, all the way from the very top of the legal system to small charities that are at breaking point. What will the Government do when it all goes wrong?
Lord McNally
My Lords, we are working on some of these issues. We are working with the judiciary to improve guidelines for people representing themselves in court. We are developing a new online information service to help people find out if they are eligible for legal aid or signpost them to other services. We are giving £65 million of funding to help not-for-profit social welfare advice providers to adapt and transition over the next two years. We are also encouraging innovations in the legal services market, such as the provision of lower-cost advice services to help people in resolving their problems.
Legal Services Commission
Debate between Lord Bach and Lord McNally(11 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Legal Services Commission decided to cease the Community Legal Service grants programme following careful consideration of all the issues involved and a public consultation exercise. These grant-funded projects and activities do not necessarily provide direct advice to the individuals eligible for legal aid. Following the Government’s legal aid reforms, the commission’s focus must be on providing advice to clients who qualify for legal aid through its contracted providers.
Lord Bach
My Lords, I thank the Minister for his Answer, but is it not rather depressing that these three highly respected and proven organisations are no longer to receive any public funding and are being put at some risk, and all for £650,000 per year? I am sure the Minister will agree that they all have a superb record over many years of helping often poor and disadvantaged people to obtain access to justice. Is it just coincidence that these changes to legal aid are coming at precisely the same time as radical reform of the welfare system is about to begin or is it, as seems much more likely to some of us, deliberate government policy to link these two things together so that if mistakes are made as a result of welfare reform—as they will be—there will cease to be any effective legal remedy for many people?
Lord McNally
My Lords, I am always fascinated by the way in which the noble Lord dismisses £650,000 as a mere bagatelle, but let us also look at the facts. This scheme for funding such bodies was introduced in 2000 and the three bodies in this consultation were awarded three-year contracts at the end of the previous Administration. Since then, we have twice extended their contracts by one year so that what was originally a three-year contract became a five-year contract. However, as I have explained to the House before, I am afraid that we have to concentrate limited funds on bodies that are giving sharp-end legal aid advice. These three bodies, particularly the Advice Services Alliance and the local Law Centres Network, are umbrella bodies that do not give such advice. Therefore, although in happier days they could win such contracts and do such work, there is simply no money.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
Debate between Lord Bach and Lord McNally(11 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, as I made clear before the House voted on 3 December, if the fatal Motion was carried, the LASPO Act would not provide legal aid in the cases specified in the rejected statutory instrument. That remains the case.
Lord Bach
Does the Minister understand that that Answer is entirely unsatisfactory and does no credit to the Government? This House declined to accept the order because it represented a breach of a government undertaking given to another place to get the legal aid Bill through and because what it offered was too mean. Why are the Government taking absolutely no notice of the will of this House of Parliament? Are they not behaving more like a spoilt child than a mature, responsible Government, protecting the legal rights of some of the poorest citizens under their care, including many with disabilities?
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
Debate between Lord Bach and Lord McNally(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I spoke to my amendment earlier in the debate and the House will be relieved to hear that I have very few words to say at this stage. My case is this: how can it be right that there is automatic legal aid for any client who gets to the second-tier or upper tribunal—the Court of Appeal and the Supreme Court—on a welfare law case but no automatic right to legal aid for first-tier tribunals? You can get to the second-tier tribunal or the Court of Appeal or the Supreme Court only on a point of law. If that is the position, how can it be right that at a first-tier tribunal, when a client has a point of law, they should not be allowed some legal advice before the first-tier tribunal commences—in other words, before the first-tier tribunal or during it? It is no use being able to get it at the very end of the first-tier tribunal in very remarkable and odd circumstances.
The Government seem to believe that was appropriate logic because that is the concession they were generous enough to make in the House of Commons on 17 April 2012. But they have not kept to that concession. They have come up with something much more vague; something that will happen in very, very few cases.
I am very grateful to the Minister for the time he has taken with this and to all noble Lords who have spoken on my amendment. When the Minister answered a question from me the other day he said:
“I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy”.—[Official Report, 27/11/12; col. 90.]
Can noble Lords think of anyone who is more needy than the sort of person that the noble Baroness, Lady Doocey, was describing—a disabled person who has undergone some of these tests in order to get her or his benefits, who is not happy with the result, thinks something has gone wrong and wants to appeal? What the Government are intending is that that person should not have the ability to get legal aid in order to appeal to the first-tier tribunal even when the matter is a point of law which they cannot be expected to know or understand. It defies logic and fairness to suggest that kind of process should continue.
All we are asking is that the Government withdraw this Motion, which they are clearly not prepared to do tonight. If they will not withdraw it, I shall ask the House, in a completely non-partisan spirit, to decline to give approval to this Motion tonight and invite the Government to come back with a slightly more generous order that looks after the type of person the noble Baroness, Lady Doocey, was telling us about earlier in our debate.
Lord McNally
My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not.
Lord McNally
It is not a threat. I just do not want the House to make a decision on such an idea. This is not the Committee stage of a Bill. The order relates to what is already an Act of Parliament. If we do not bring forward another order in this area, the Act simply will go through. I want the House to be aware of that fact.
Lord Bach
There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.
Lord McNally
I will answer it—I answered it in my remarks. The Lord Chancellor said that he would take the matter away and use his best endeavours. I have seen the exchange of papers with the DWP, the Legal Services Commission and the Administration on whether this could be done. We have come back with our best endeavours. This casual throwing around of betrayal fires the troops up for voting but it simply is not true.
Lord Bach
I would not dream of using the word betrayal as regards this matter. The noble Lord misunderstands me completely. It is not a betrayal. The governing party in the House of Commons said that it intended to do something and, in that way, managed to get an adverse amendment withdrawn. It has come up with a solution but the solution is not the concession that it made in the House of Commons. That is the fact of the matter. It is a much narrower solution and it is deeply unsatisfactory for those who are interested in how the poor, the disabled and the vulnerable are looked after in our society and their rights to access to justice.
For that reason, I ask the House to decline to approve this order, so that the Government can think again and come back with an order which we can all accept. I beg to move.
Justice: Legal Advice
Debate between Lord Bach and Lord McNally(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.
Lord Bach
My Lords, I thank the Minister for his reply. Does he agree that a fundamental test of any legal aid system is whether it gives access to justice to the poor, the disabled and the marginalised? If it does not do that, what is its point? It is agreed by everyone that many hundreds of thousands of our fellow citizens will be deprived of legal help and legal advice from 1 April next year—rightly named All Fools’ Day. Does he further agree that for this to happen at all, let alone in the middle of radical changes to our welfare system, is a disgrace and is certain to lower the reputation of our whole legal system?
Lord McNally
My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.
Criminal Injuries Compensation Scheme 2012
Debate between Lord Bach and Lord McNally(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
We have had the whole gamut today of the Labour Party never supporting a cut and never facing up to a responsibility. I listened to what the party opposite has said, and we have taken the tough decisions. Not only have we done that; in this case we have also made the sensible decision to move victim support to where it is needed, at the sharp end. We are finding the resources by these reforms and I commend them to the House.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I can be very brief. The Official Opposition share the disappointment of the noble Lord, Lord Pannick, in the Government’s response to his amendment. The Government have approached that amendment—a modest and sensible one by any standards—in a most unsatisfactory and unconvincing manner. We certainly agree with what the noble Lord had to say about financial privilege in the context of his amendment. There will be many inside and outside Parliament who will wonder for some time to come why the Government were not able to accept his amendment. We had no satisfactory reason given at any stage, and people will fear the worst as far as concerns this Government’s intentions in relation to legal aid.
I, too, would like to pay a compliment to the noble Lord, Lord Pannick, as my noble friend Lord Clinton-Davis did. He is a model of the way in which a noble Lord can assist this House when dealing with difficult and complicated legislation, and he does it from a point of view that always has justice as its base. The noble Lord made some strong strictures on the Bill and I agreed with every word he said. I will be less polite than he was. There are parts of Part 1 of the Bill—the bits that destroy social welfare law—that are not just bad but actually wicked; and I choose that word with great care. They are wicked because they set this country back from the position it was in.
The noble and learned Lord, Lord Mackay of Clashfern, has a great reputation for making sure that the system of social welfare law worked well and to the benefit of the poorest in our society. I very much regret that the Government have changed all that for no savings at all. Even if the savings were great, they would not be worth it—but there will be no savings at all. Why do I say “wicked”? Because I think it makes this country more uncivilised and it diminishes something that is very precious to all Members of this House: our legal system. As such, it diminishes our country, too.
Lord McNally
We have heard that speech several times over the past few months. I repeat that the big betrayal of the poorest in our society would be to lose control of our economy. Sometimes noble Lords opposite take the biscuit in the way they put their arguments. The noble Lords, Lord Pannick and Lord Clinton-Davis, do not have a monopoly of passion in this area. The noble Lord, Lord Howarth, has used his argument before. We have consciously changed the direction of the 1949 and subsequent Bills that were open-ended in their commitment and now have one that is specific in its commitment. That is at the heart of our resistance to the Pannick amendment. It is to mislead the House to argue that the Government have not made clear from the start the purpose of the Bill and of the Lord Chancellor. I tremble to take on a former Lord Chief Justice or a most distinguished QC, but Part 2 states:
“The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor’s function under this Part”.
It is all laid out there in Part 2. To argue that it is not will mean that we will go round in circles.
I have never used the financial privilege argument. As is well known and as we have heard from some very experienced parliamentarians, if an amendment infringes privilege, that is the only reason that will be given. If noble Lords want a major reconstruction of our constitution going back 300 years, that is all very well; but, as I said, the financial privilege of the House of Commons is not something to be lightly dealt with. Our opposition to the Pannick amendment from the beginning was that it was flawed, providing as it does a duty that is unclear in both application and effect, as well as displacing a duty that is precise, unambiguous and inherently tied to the Bill and the legally aided services available under its auspices.
I therefore ask the House to support the House of Commons in rejecting the amendment—I understand that the noble Lord, Lord Pannick, is not going to press it. This is really the time to ask the House to agree with the House of Commons.
Lord Bach
My Lords, I begin by congratulating the Minister on being a member of the luckiest Government there can ever have been in the history of Parliament. The odds against drawing three votes on crucial amendments, two on Report and one at this stage of proceedings so that the Government win the vote, as it were, must be immense. He has managed to do that and I congratulate him on it. I just hope for his sake and the Government’s that their luck does not begin to run out.
On this issue, the Minister also deserves some congratulation if, as I suspect he did, he played a part in persuading his fellow Ministers, and the right honourable and learned gentleman the Lord Chancellor, that there had to be some give or concession. If he played a part in that, I congratulate him and think that he has served the House well in that regard.
I, too, want to compliment those outside the House. As the noble Lord, Lord Alton, stressed, the co-ordinator of the Greater Manchester Asbestos Victims Support Group, Mr Tony Whitston; Mr John Flanagan, the Merseyside equivalent of that organisation; and many others outside have worked incredibly hard to make sure that people who do not always have a very loud voice have had a say in Parliament—or rather in this House of Parliament. It is absolutely clear that when these matters were raised in the House of Commons when this Bill was first taken through, they were completely dismissed. It was only when the Bill came to the House of Lords that the noble Lord, Lord Alton, with his usual courage and zeal, managed to raise these matters, with the help of the noble Lords, Lord Avebury and Lord Wigley. Eventually, at the very last minute, he got a concession from the Government.
I pay tribute, too, not only to those I have mentioned but to the noble Baroness, Lady Doocey, the noble Lord, Lord Avebury, and the Conservatives who abstained in the vote on Monday night. Had they not played the part that they did, the amendment in the name of the noble Lord, Lord Alton, would not have gone through. I remind the House that it won by nine votes. If it had been lost there would have been no review or concession; there would have just been rejoicing in the Ministry of Justice. It was as close as that. It is because of the bravery of those who were prepared to abstain or vote against their own Government that we are here today congratulating the Government, quite rightly I am sure, on their concession.
Seriously, it is a good concession and we know, or trust, that the review will be genuine. We look forward to playing our part in making sure that the sufferers of this terrible disease get a fair deal when the Government have had their review. Not only the noble Lord, Lord Alton, but all of us will be watching very closely to see how developments move forward in this very vexed field. As for this House, for once it can congratulate itself.
Lord McNally
I think that if the noble Lord were to ask Señor Torres, he would find that a draw is also sometimes a victory. He is the Chelsea centre forward. I know that the noble Lord, Lord Bach, is a Leicester City supporter and does not mix in that kind of high-class company.
I was very grateful for the comments at the beginning of the speech of the noble Lord. I notice that he quickly tailed off towards the end to start initiating rebellions, and so on. I have continually made the point that I am well aware that any Minister is a bird of passage, but I have always been a lover of this place—I mean the whole Parliament building. I sometimes say when I show visitors around that I never come into this place without a sense of awe for what it stands for and what it does. Anyone who stands at this Dispatch Box takes the buffeting and advice and has to work through very much with the help of the awkward squad. The only problem with the awkward squad is that when one campaign is over it immediately starts on another. I noticed from the remarks of the noble Lords, Lord Avebury and Lord Wigley and, indeed, the noble Lord, Lord Alton, himself that further campaigns will be on the way.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.
Lord McNally
My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.
As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.
Lord Bach
I am very grateful to the noble Lord—I think the whole House will be grateful to him—for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again—it is of such huge importance.
Lord McNally
I think it was the line, “I want to stop soon” that provoked my noble friend Lord Higgins to get to his feet.
Again, this has been a very useful debate, with two parallel arguments. I go back to my opening remarks: nobody underestimates the horror of mesothelioma and the importance of getting speedy redress for sufferers. Parallel to that, however, are the attempts that we are trying to bring forward to bring some order to the costs of litigation. It simply is not true that the Jackson reforms are intended just to catch dodgy whiplash claims. There was a general feeling that the amendments to CFAs which the previous Administration introduced brought in an overall inflation of costs in our legal system. We all pay for that inflation.
I hear what the noble Lord, Lord Wills, said, but the truth is that the present system which the sufferers have to use is slow and expensive. I repeat that the intention of this Government is to move as speedily as possible to get to where we can through agreement with the industry, to get litigation out of the way. It is true, as has been said by a number of noble Lords, that there was callous treatment of sufferers. There was slow movement in addressing the issue, but that accusation does not lie at this Government’s door. We have moved very quickly in our attempts to get agreement with the industry.
Lord Bach
As far as that is concerned, the setting up of a body in order to get a move on with this was mentioned in a White Paper from the previous Government two years ago. We have seen absolutely nothing after two years to suggest that that body will be set up soon. Indeed, every comment made by the insurance industry as a whole has been opposed to any organisation that would stand in, as it were, when they cannot find who is responsible for these diseases being caused.
Lord McNally
As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.
The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.
My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers’ access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.
It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs—not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.
Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.
Lord McNally
On the contrary. I am sure that the noble Lord, Lord Bach, is ready to leap to his feet to draw attention to the fact that we have carried through the savings in criminal legal aid that the previous Administration put in train.
Lord Bach
Yes, I am pleased that the Government have done that, but that figure is included in the 8 per cent that they have taken off criminal legal aid. They have taken 29 per cent off family legal aid, as well as 53 per cent off social welfare law. Why that distinction? Why take 8 per cent from a large amount on criminal legal aid, 29 per cent on family law but 53 per cent of a pretty small budget on social welfare law? That is deliberate, is it not?
Lord McNally
The point is that it is still an appointed House and is an advisory and revisory Chamber. As such, where this House decides to draw stumps on a particular issue is a matter for its judgment. Although financial primacy may occasionally irritate this House, again, as a House of Commons man and as I said earlier, this is not something recently drawn up by the coalition agreement or even by the 1911 Act. It is 300 years of our much-valued history during which kings have lost their heads and their throne in the primacy of the House of Commons on financial matters. Much as I should like to flatter the House on this matter, I still believe that it is important.
I understand the desire to see more legal advice in these cases. As I said in my opening remarks, we believe that in most cases individuals will be able to appeal to the First-tier Tribunal without formal legal assistance. I quoted the president of the tribunal in highlighting that in many cases eliciting additional information from the appellant was the most useful exercise that the tribunal carried out.
I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.
As I have said, we have gone into this matter fully and it is not something that we have ducked. From the very beginning, from the first consultation paper, we took a decision that social welfare would be taken out of scope. I know how passionately the noble Lord, Lord Bach, feels about this matter. If he was in my position, it is not the road he would have taken to fulfil his party’s commitment to cut legal aid. That is the nature of things. This is the judgment of the Government.
We are not looking at complex points of law in other areas at the moment. As the noble Lord, Lord Wigley, said, the problem is that if you make a concession somebody immediately stands up and says, “Why not look at it in other areas?”. We can build on what the Lord Chancellor promised about talks with the DWP. The noble Lord, Lord Thomas, in explaining what he was proposing, illustrated why we have been careful in putting this matter forward. We will look at it carefully and I will draw to the attention of my right honourable friend the Lord Chancellor the specific proposals he made in his speech.
As I have said before, we have had a very thorough debate on this. It has certainly been very thoroughly debated in this place over the past year. I believe that it would be better now if the House were to accept the Commons amendments and the noble Lord were to withdraw his.
Lord Bach
I am very grateful to all noble Lords who have spoken in this debate. We have had the expertise of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, both of whom are experts on the disabled and the problems that they face. I am also very grateful to my noble friend Lord Howarth and the noble Lord, Lord Martin of Springburn, for their very knowledgeable contributions on this matter, and not least to the Minister for what he has had to say.
This is one of the central and most important debates of this whole Bill. It goes to the very heart of what the Government are seeking to do, which is effectively to ask whether social welfare law will survive in our jurisdiction. We currently have a system of social welfare law that we can be proud of. It is not perfect; it makes mistakes and it probably does not have enough money spent on it but it is not a bad system, where not-for-profit organisations around the country—CABs, law centres, other advice centres and some Law Society solicitors—do wonderful work at very low rates, giving advice to the most vulnerable, the disabled and the poorest in our country.
The issue is whether claimants will continue to get the advice that they have been entitled to in the past—because there has been a consensus of the political classes of all the parties that that is the proper way for a mature legal system to behave—which helps them decide whether or not they have a case when they are dealing with the state. Without that advice, how will these people get to the tribunal in the first place? The Minister quoted the president of the Social Entitlement Chamber of the First-tier Tribunal. Is that the same president who has publicly said that he is appalled at the prospect of more and more claimants coming before his tribunals who have not had the benefit of any legal advice?
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
From the opposition Front Bench I can be extremely brief, as I should be because this is Third Reading. These are very important amendments which the House will have to decide on shortly. JustRights has done some number-crunching on the issue of children. It points out that, while 95 per cent of funding may be protected, only 74 per cent of children are protected likewise. Therefore, the 6,000 mentioned by the noble Baroness who moved Amendment 3 will be left to navigate the legal system alone. These children will have no adult to help them—no litigation friend, in parlance.
It is absurd to think that in social welfare law cases, a conditional fee agreement is any substitute whatever for basic legal aid for getting legal advice for the kind of problems that affect these children. In effect, we are being asked to abandon some of these children— 16 year-olds perhaps—to a legal system that is far from understandable. They will be mainly children in care who have fractured relationships with their parents. The House knows so well that these are exactly the kind of children who, if they do not get early legal help, may end up in young offender institutions or secure children’s homes at enormous cost to the state, which would be much more than the small amount that the Government claim will be saved by not giving them legal aid. How much wiser would it be to spend that money early? Surely, for children, legal aid is greatly preferable to a CFA right across the board. We support the amendments.
Lord McNally
My Lords, in debates like this, I am always a little worried that noble Lords not in the Chamber when the Division Bells ring will come along and say, “What is this about?”. They may be told, “Oh, we are voting on legal aid for children”. Let us be clear, these amendments and this debate are not about whether we provide legal aid for children and vulnerable people; nor is it about not being willing to help those least able to help themselves; and nor is it about denying help to the most vulnerable in our society.
As my noble friend Lord Thomas of Gresford pointed out, the core principle of our reforms is to ensure that civil legal services will continue to be available in the highest priority cases; for example, where a person’s life or liberty is at stake or where children may be taken into care. The application of this principle has led us to protect the vast majority of funding and cases involving children. They include child protection cases, civil cases concerning the abuse of a child, special educational needs cases and cases involving children who are made parties to private family proceedings. Noble Lords will also recall that we have moved to make funding available for clinical negligence cases concerning brain-damaged infants. It is simply not true therefore to suggest that there will be no funding or very substantially reduced funding for the cases involving children and young people.
In addition, as indicated earlier, we have moved the amendment ratchet to “regulator” which will enable us to test whether some of the more dramatic warnings that have been issued about our reforms can be looked at. We are committed to undertake a post-implementation review of the specific policies set out in Bill. We believe that these safeguards are sufficient to ensure that children do not fall through the net. Our approach will mean that 97 per cent of current spend on cases involving child claimants will continue, and that is the overwhelming majority of current support. Spending reductions are never welcome, but I hope these figures put it beyond doubt that we have made a genuine endeavour to ensure that children are protected, even as we push on with the wider objective of our reforms, which is to focus scarce resources on the most serious cases, to contribute to savings and to reform the system.
Lord McNally
It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.
Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought forward an amendment on Report that will provide certainty for families and make the application process straightforward.
The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.
Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual’s rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be key considerations in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.
I am told that we have lost the vote about retaining legal aid for appeals to the Supreme Court.
Lord McNally
The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most effective way of taking these cases. It is worth remembering that 82 per cent of cases are already covered by CFAs. People are not left abandoned on a lonely sea—the process works.
It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
Lord McNally
My Lords, my noble friend is catching something that perhaps I should not call Pannick disease. The noble Lord, Lord Pannick, has a habit of asking questions and then giving the answers. We will have to see whether I will be able to satisfy my noble friend on the questions that he raised.
As I explained, the basic rationale for the proposed reforms to no-win no-fee conditional fee agreements is to squeeze the inflation out of our legal system. It is to rebalance the system to make it fairer as between claimants and defendants. They do this by correcting the anomaly whereby those who bring cases have no incentive to keep an eye on the legal costs. Right now, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants fighting cases, even when they know they are in the right, for fear of the disproportionate legal costs involved if they were to lose.
High and disproportionate costs have a negative impact not just because they can deny access to justice but more broadly because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true than in relation to responsible journalism, as well as to academic and scientific debate. The judgment of the European Court of Human Rights, to which my noble friend Lord Lester referred, in January 2011 in Mirror Group Newspapers v the UK—the so-called Naomi Campbell case—found the existing CFA arrangements with recoverability in that instance to be contrary to freedom of expression under Article 10 of the convention. Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no-win no-fee cases impose. However, defendants are not always rich and powerful newspapers; they are also scientists, NGOs, campaigners and academics.
I have already made the general argument that any exception to reforms intended by Lord Justice Jackson to apply across the board is invidious and likely to lead to unfair anomalies with special treatment for some areas of law but not others. In the case of defamation, I additionally argue that these amendments are premature because, as the noble Lord, Lord Lester, explained, these issues need to be considered in the context of the defamation Bill, which we aim to introduce as soon as a legislative opportunity arises.
Lord McNally
The noble Lord will have to wait and see. One thing is certainly true: I have made every effort to make sure that defamation is not engulfed in a tsunami from Leveson. If we really want to reform defamation and not get caught up in a much wider privacy law, what I am trying to do is the way forward. Stunts like dividing the House tonight will show that, on this Bill, the noble Lord is still more interested in short-term political gain than in making progress.
Lord McNally
We are talking about a Bill that does not come into effect until 2013. Given that defamation legislation is in process, I do not think the fact that there is a slight lacuna is a major problem in terms of the issues that the Bill will deal with. If it takes a little longer, that is a problem, and I will return to that.
That Bill and associated measures seek to reduce the costs of litigation and discourage unnecessary litigation in the area of defamation. We seek to do so, very broadly, by introducing a range of substantive and procedural changes and also by focusing on alternative dispute resolution, which is quicker, at lower cost, and offers more meaningful redress.
Any exceptions for defamation or privacy cases from the changes in Part 2 are unnecessary because our CFA reforms should not prevent strong cases being brought. I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent that where a case is a good one.
The noble Lord, Lord Bach, sometimes makes me gasp when he starts lecturing our Benches on consistency. The noble Lord, Lord Prescott, asked why this was happening now. Perhaps I may quote an expert on these matters:
“CFAs will remain available for defamation cases; thereby, lawyers will still be able to use them in deserving cases”.—[Official Report, 25/3/10; col. 1157.]
Those were the words of the noble Lord, Lord Bach, as Justice Minister, when he rushed attempts to reduce success fees before this House just before the election. We have already heard what happened in the grand coalition that was the Labour Government when the proposal went down the other end. Nevertheless, the noble Lord, Lord Bach, told this House:
“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases”.—[Official Report, 25/3/10; col. 1156.]
He was backed up by a consultation which said,
“immediate steps are needed in respect of defamation proceedings”.
Lord Bach
My Lords, I stand by those remarks. If the Minister thinks that there is something wrong—for example, the difficulty in relation to damages where, under his Government’s scheme, claimants will have to pay up to 25 per cent of the damages they get—what is he going to do to change that? He is in government now.
Lord McNally
We are doing what they did not do. We are bringing forward a Defamation Bill that will address many of these problems. The noble Lord says that he does not know what is in the Defamation Bill. A Defamation Bill was brought into this House by my noble friend Lord Lester two years ago, when this Government first came in. In reply to that, I said from this Dispatch Box that we would take up this Bill. We went into a consultation, which has been published. We produced a draft Bill, which the noble Lord may have noticed. We also had pre-legislative scrutiny under the chairmanship of the noble Lord, Lord Mawhinney, and we have responded to that.
We have played this by the book. We have not tried to rush through legislation, as the noble Lord did in the dying days of his Government. We have carried out a sensible look at defamation. The noble Lord knows the conventions. I am very hopeful that we will find parliamentary time in the very near future.
As I have already said, the legislation in this Bill does not come into effect until 2013. The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect. I can give the House the assurance that we will do so. Bearing that in mind, I hope that the noble Lord will withdraw these amendments. We are on course for a reform of our defamation laws.
Lord Bach
My Lords, I will be as brief as I can with this amendment. This is the third time that the issue has come before the House. The names put to the amendment on the first occasion were those of the noble and learned Lord, Lord Mackay of Clashfern—who made a very powerful speech—the noble Lord, Lord Thomas of Gresford, and mine. On Report it was just my name and that of the noble Lord, Lord Thomas of Gresford, and he made a very powerful speech. Now it is down to one, and I intend simply to ask the Minister some questions.
The Minister will recall that, on Report, he stated that the Government accepted that “insolvency proceedings are untypical” and—stand apart as they are—that they are,
“one of the few areas where CFAs sometimes work to the advantage of government departments”,
and creditors generally. Despite that, and despite what I would argue are clear arguments in favour of it, the Government have decided against “a carve-out” for insolvency. The Minister announced that there has been,
“agreement across government, in respect of insolvency proceedings”,
and,
“that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums”.—[Official Report, 14/3/12; col. 358.]
The insolvency profession has apparently not been involved in any discussions with the Government about this new way of approaching insolvency proceedings and is concerned that the Ministry of Justice and HMRC may have decided that a contingency legal aid fund could be set up for insolvency cases.
My questions to the Minister are as follows. First, what are the Government planning with regard to insolvency proceedings and—to ask the same question as the noble Lord, Lord Thomas, asked on Report—when will this be implemented? Is it indeed a contingency legal aid fund, or is it not? Secondly, if the Government are not going to exempt insolvency proceedings, will they agree to carry out a proper impact assessment to determine the impact that this will have on the taxpayer and business community? Thirdly, have the Government consulted the insolvency profession on how this might work in practice? Fourthly, will this measure help safeguard returns not just for HMRC but for private businesses as well? Fifthly, will this measure act as a fraud deterrent, as the current system does? Sixthly, if this new way does not work, what protections will the Government put in place to safeguard returns to HMRC and businesses? Could there be an exemption, for example, further down the line? Lastly, can the Minister assure the House that the Government will consult the insolvency profession on the details of these proposals? Those are the questions that I would like answered. I beg to move.
Lord McNally
My Lords, as I indicated on Report, we have reached agreement across government in respect of insolvency proceedings. In future these cases will need to proceed without recoverable success fees and insurance premiums. Alternative ways will be developed in time to deal with these important cases. We are working on a programme for implementing Part 2 of the Bill, and the details relating to insolvency proceedings will be set out in due course, before implementation. Insolvency cases will need to proceed without recoverable success fees and insurance premiums in the future. The impact of the Government’s CFA changes on those affected will depend on a number of unknown factors, including the volume of cases pursued in future, the number of cases which win, the levels of success fees and ATE insurance premiums negotiated, and the recoveries made in those cases. The Government will work with HMRC and others to further assess the impact of our changes. Policy discussions within government continue all the time, and remain confidential until the policy is agreed and announced. I urge the noble Lord to withdraw his amendment.
Lord Bach
Of course I am going to withdraw my amendment this evening, and I understand that the Minister could not answer all the detailed questions that I put to him just a few minutes ago. I would be grateful if he would be good enough to get his officials to write to me, through him, with the replies that he was not able to give tonight.
Lord McNally
To clarify, my Lords, we will engage as well with insolvency practitioners.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.
Lord McNally
My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.
I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.
Lord Bach
My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.
The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Bach
My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,
“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—
of the day, presumably—
“and the trial judge if available, to refer the case to the Parole Board”.
Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally
My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I am proud to be associated with the amendment in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Newton and Lord Pannick. The amendment is of the greatest importance, and many people outside the House are following it with exceptional interest.
It is perhaps important to remind the House that the mandatory gateway will apply only to those elements of social welfare law that are still in scope—including, of course, for the moment, welfare benefits because of a decision that the House took last week on an amendment moved by the noble Baroness, Lady Doocey. That is a statement of the obvious, because those areas of social welfare law that the Government intend to take out of scope will be quite irrelevant for these purposes. There is no possibility of legal aid in those cases. In effect, the Government are saying that people with those legal problems will have to fend for themselves if they have no money. That is a pretty shocking state of affairs.
We have had a short but powerful debate in this House today—and we had a very powerful one almost three months ago at the end of the first day of Committee, on 20 December 2011. Very powerful speeches were made. I have in mind that of the noble Lord, Lord Shipley, whose final words were:
“There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway”.—[Official Report, 20/12/11; col. 1764.]
The noble Lord, Lord Phillips of Sudbury, made yet another powerful speech today. The one he made on that occasion was powerful, too. He said:
“If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted”.—[Official Report, 20/12/11; col. 1766.]
The Minister says from a sedentary position that there is no evidence of that. What an unbelievable response. One only has to know from human nature—from living in the real world rather than the world of Whitehall—that that is how people are. It is about time that the Government started taking people as they are rather than as they want them to be. There were powerful speeches also from the Liberal Democrat Benches on that occasion.
I made the point that it was nearly three months ago because we have had no hint of a concession in all that time. We know from a letter that a telephone call will not be free, as was suggested at the time. There will be a cost to the client who has to make the call. It will not be huge, but it will be there—and that is another factor that will apply. It is simply common sense that to have a mandatory gateway for all clients seeking legal advice is absolutely inflexible and will almost certainly lead to a number of people who clearly should be helped receiving no help at all. It will lead to injustice after injustice.
The Bolton CAB is a large CAB which covers all these fields and has a legal aid contract. It runs an advice surgery from time to time. Yesterday it tried an experiment. Every client who came in had their tale told in general terms by way of a tweet, in other words on Twitter, so that one could read each one of these cases during the course of the morning and afternoon while this surgery lasted. One could see from reading these how the world of a busy CAB or law centre or advice centre actually worked in practice. There were 126 clients who sought legal advice on social welfare issues and they covered practically everything that you could think of. I have no doubt that some of those clients were well able to make a telephone call and start proceedings in that particular way, and I am an undisguised fan of telephone advice when it is appropriate. But are the Government really saying, as I suspect they are, that all 126 of those clients would have been able to do this? Are they saying it is not highly advantageous to have face-to-face contact in some cases? And are they really saying that someone who turned up to a CAB should be turned away and told to call a hotline, as will happen unless this amendment is passed? Can you think of a more bureaucratic, fussy and less efficient system and one that is less reflective of the way people actually live their daily lives? I would argue that it is an absurd proposition which is un-British in the sense that it is one-size-fits-all and too dirigiste and inflexible an approach.
Sometimes Governments just get things completely wrong and Parliament has some sort of duty to say so. It actually helps Governments in the long run if they do not charge off in the wrong direction. Here is a short story. I remember when I was a Minister sitting where the Minister is, in the same department, putting forward some foolish, to put it mildly, proposition and then seeing, when the vote was called, many of my own supporters walking past in order to vote in the Opposition’s Lobby and losing the vote for the Government by a large amount. It was the right thing for them to do. Actually, there was so many of them that none of them could be picked out and dealt with later. There is an advantage in numbers sometimes. And they need not even be afraid on this occasion of the noble Lord, the Deputy Chief Whip of the House. Frankly, I would argue that this is one of those instances. If the Government are defeated on this issue and if the Liberal Democrats could just bring themselves for once to vote against the Government, the world would not stop, the Government would not fall, but an enormous mistake might be averted and Parliament would have done the right thing.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in case my colleagues on the Liberal Democrat Benches missed it, that was a subtle attempt by the noble Lord, Lord Bach, to woo them into the Aye Lobby. All that I can say in this technological age is, just think what the noble Lord, Lord Bassam, will be tweeting about them if they do not do as he suggests.
Throughout this Bill it has been very difficult to reply to a debate, trying to deal with very narrow, specific terms, when the noble Lord, Lord Bach, constantly makes his case in the broadest terms. We are not forcing everybody through a telephone gateway; we are doing a specific and very narrowly drawn test. I ask noble Lords to make their decision on the facts.
We make jokes about this House and its otherworldliness, but we are living in the most communications-savvy generation in our history. I do not just mean teenagers and young people; I mean silver surfers and people right through. They buy on eBay; they use telephones and new technology in a very broad way. It is patronising to assume that people cannot make use of it. Of course, we are aware that there may be exceptions. That is why, when noble Lords come to vote, it would be worth listening carefully to what we actually propose to do and what safeguards we are putting in place, rather than what I would call the broad-brush approach adopted by the noble Lord, Lord Bach.
There will be safeguards. Face-to-face advice will remain an option in the exceptional circumstances when there are callers for whom adaptations cannot be made to ensure that there is an appropriate level of service. Our starting point is that telephone advice is effective and efficient. The Community Legal Advice helpline figures for 2010-11 show that more than half a million calls were made to the service. The 2010 survey of clients who subsequently received advice from the specialist service showed that 90 per cent of clients found the advice given helpful.
The benefits of electronic services generally and the Community Legal Advice helpline service in particular are twofold. The first benefit is access. These services particularly help people with specific needs who find it difficult to get to face-to-face services; for example, those living in remote areas or who have a physical disability. Callers can access the Community Legal Advice helpline service at a time and place convenient to them. The second benefit is quality. Contrary to the assumption that face-to-face advice is always better, specialist telephone advice providers are currently required to meet higher quality standards than their face-to-face counterparts. For both these reasons, the Government believe that the Community Legal Advice helpline should be the mandatory gateway for applying for legal aid.
However, I can confirm today that the Government have listened to concerns and will not proceed with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway. We acknowledge particular challenges in delivering a quality service to community care clients. The Government have always recognised that this is a complex area of law and said in the impact assessment that around half of clients in this area would require face-to-face meetings with legal representatives even where only legal help is being provided.
We have heard since from stakeholders that individuals’ circumstances can be so unique that face-to-face meetings are frequently required to deal with problems in this area even where only legal help is being provided. We have accepted that the numbers of community care clients requiring face-to-face advice is in fact likely to be more than our original estimates, and we are therefore not proceeding with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway.
Lord Bach
I am happy to put my name to this amendment with the noble Lord, Lord Thomas of Gresford. I cannot think of anything he said that is not right on this. It seems an open-and-shut case—as it did in Committee, I have to say, when the noble and learned Lord, Lord Mackay of Clashfern, made the first speech in the debate on this subject. I have nothing to add to what the noble Lord, Lord Thomas of Gresford, said: he made the case. If the Government are to reject this, I very much hope that it will come back for final decision at Third Reading.
Lord McNally
My Lords, the Government accept that insolvency proceedings are untypical of our reforms to CFAs in an important respect. Across many areas of law—for example, in clinical negligence cases against the NHS—the Government are on the sharp end of our dysfunctional CFA regime as it is the defendants bringing cases against claimants, sometimes speculatively. However, as the noble Lord, Lord Thomas, has said, insolvency stands apart because it is one of the few areas where CFAs sometimes work to the advantage of government departments; for example where an insolvency practitioner recovers moneys for the taxpayer and other creditors. So if these amendments were to be accepted, they would effectively constitute a carve-out for the key place where CFAs can be useful to the Government—this at a time when we are asking everyone else to adjust to a new, more sensible regime.
We debated insolvency proceedings in Committee and I said then that we were considering this issue within government. I can report that we have thought about it carefully, but we do not agree that an amendment along these lines is the right way forward. I do not believe it is acceptable to say that CFA reform is good for everyone else, but is not good for the Government.
Lord Bach
I am sorry to interrupt, but it is not so much that this is good for the Government—it is good for the taxpayer. Surely that should be one of the main considerations. If it is good for the Government, that is fine; but if it is the taxpayer who will benefit, because creditors get their money, as it were—the HMRC gets its money by taking advantage of the amendment—I cannot see why the Government are resisting this.
Lord McNally
As the noble Lord will know, the interests of the taxpayer and the Government are synonymous, because one is working for the other.
Lord McNally
It is far too late in the evening for such repartee. As I say, we have reached agreement across government, in respect of insolvency proceedings, that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums. We are working on a programme of implementation and we will set out the details in due course.
As with other areas now subject to a new CFA regime, the effect will be that claims occur at more proportionate cost, as claimants will have a stake in the legal costs being incurred on their behalf. We believe that the exemption proposed by the amendments in respect of insolvency proceedings is unnecessary and would breach the basic rationale of our reform policy. I therefore urge my noble friend to withdraw his amendment.
Lord McNally
My Lords, the government amendments in this group are minor and technical and will ensure that changes to the recoverability of success fees and the insurance element will apply consistently to all conditional fee agreements, including collective CFAs. I wrote to all Peers last week about the amendment. A copy of the letter was placed in the Library of the House. I beg to move.
Lord Bach
My Lords, I am not getting to my feet just to be difficult. When the Minister moves government amendments and describes them as technical, usually I sit absolutely still in my place. However, on this occasion I have a couple of questions. If he does not know the answers tonight, he is welcome to write to me and to other noble Lords. Will he confirm that the effect of Amendment 135A will be that a success fee as part of a CFA under which work for the claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on exactly the same basis as it is now?
The second question is similar but concerns collective CFAs. Will the Minister confirm that the effect of the amendment will be that a success fee as part of a collective CFA under which work for an individual claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on the same basis as it is now? I will not object to the amendment being agreed, but I would be grateful if in due course I could have answers to those questions.
Lord McNally
My Lords, I am sorely tempted to show that after months of total immersion in the Bill I can leap to the Dispatch Box and give the noble Lord a detailed response. However, as he knows, I did only one paper on English legal institutions in part 1 of my degree. Therefore, I will not pretend that I can give him a definitive answer. However, I firmly promise that a letter will go to him and into the Library of the House in response to those questions.
Lord McNally
My Lords, we have reached the stage of the evening when the noble Lord, Lord Pannick, not only asks the questions but gives the answers as well—cutting out the middleman, which is me.
I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.
We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration—with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.
Lord McNally
Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one’s own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government’s position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government’s reform and we will strongly resist it.
In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers’ liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.
I urge the noble Lord not to press the amendments.
Lord McNally
My Lords, I have said before that we are grateful to my noble friend for raising this issue. It is a possible problem and a number of noble and learned Lords and lawyers outside have given warning signals. At the moment we are looking at how voluntary regulation is working in the area. However, my right honourable friend the Lord Chancellor is very aware of the situation and is keeping it under review. We do not think that statutory regulation through this Bill is either the right place or the right time but we welcome the fact that my noble friend has put this issue on the political radar. Both lawyers and legislators will have to follow the matter closely to see whether we will need to return to it at some future date. In the mean time, I ask my noble friend to withdraw the amendment.
Lord Bach
The Minister would be well advised to give serious consideration to the amendment proposed by the noble Lord, Lord Thomas of Gresford. This is not one that he moved in Committee—he has moved it for the first time today. The House knows that he has become an expert in this field of litigation over the months that he has spoken to me about it. He may well be right that it is no good the Government taking a position that looks like it may take some time to develop. It is something that needs to be done and thought about pretty promptly. Therefore, as far as we can, we support the amendment.
Lord McNally
My Lords, I think it was the noble Lord, Lord Martin, who talked about the proper role of the House of Lords. Although the hour is late, my noble friend Lord Thomas has demonstrated one of the benefits of this House in bringing to the Government’s attention an area where there already is or could be a malpractice that will have to be dealt with. As he explained, this is a practice where an insurer approaches a claimant directly, usually immediately after a road traffic accident, with a view to settling the claim, where an insurer’s own policyholder is at fault in a car accident. As I understand it, claimant representatives refer to this practice as third party capture, whereas defendant representatives call it third party assistance. As I indicated in Committee, I shall continue to refer to this practice as third party contact.
Amendment 142D would make it an offence for an insurer to make such an unsolicited approach to a potential claimant in a personal injury case. The amendment also specifies those requirements which must be met before an insurer may make an offer to settle such a claim. This includes a requirement to obtain adequate medical evidence of injury and to advise the claimant of their right to obtain full legal advice before accepting the offer and making it clear to the claimant that the offer to settle is full and final.
It is unclear what my noble friend means when he says that this practice should be an offence. If he refers to this as being a criminal offence, I do not believe that a criminal sanction is appropriate or proportionate. You would have to prove beyond reasonable doubt that something amounted to an unsolicited approach. As I explained in Committee, the Financial Services Authority regulates the insurance industry and requires insurers to treat their customers fairly at all times and that this covers third party claimants.
Third-party contact does not in itself cause detriment to the consumer and may be to their advantage, as a claim can often be resolved quickly. In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim and this in turn reduces costs for all policyholders. However, I am aware of the concerns around the potential risk of conflict of interest and the need for the claimant to have independent legal advice before any settlement is agreed. This matter was looked at by the FSA in its review of third-party contact during 2009-10 and it did not find conclusive evidence that unrepresented third parties could have achieved higher compensation had they obtained independent legal representation.
Following the FSA’s review, the Association of British Insurers published a code of practice in June 2010. The code contains specific guidance for insurers on contacting claimants. This limits unsolicited contact. For example, and I quote:
“Insurers will not make unsolicited visits to an unrepresented claimant at their current address, including hospitals”.
The code also requires that claimants are informed of their right to seek independent legal advice and other options available for them to resolve their claim.
Most of the issues which this amendment seeks to address in respect of the handling of third-party contact claims are already covered by existing regulation. The FSA rules require that insurers fully inform third party claimants of their legal rights, including to independent legal advice and alternatives to settling directly with the insurer. The Government do not believe it is right or appropriate to introduce further sanctions or regulation in this area, especially when a scheme already exists to monitor insurers’ activities. That said, I can reassure my noble friend that if a serious concern arises in the future in this area—and we will keep it under review—we will not hesitate to take this up with the Treasury and with the FSA.
I am therefore grateful to my noble friend for raising this issue with us, but for the reasons that I have mentioned I hope that he will agree to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Bach
The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
Secondly:
“The continued provision of legal aid”—
yes, legal aid—
“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
That seems to me like an employment tribunal. Lastly:
“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally
I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.
Lord Bach
I am much obliged to the Minister. He supported, then:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,
did he? He supported, to repeat:
“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.
Lord Bach
I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally
My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—
Lord McNally
I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—
Lord McNally
My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.
Lord Bach
My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.
Lord McNally
I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.
Lord McNally
Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.
Lord Bach
Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.
Lord McNally
Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.
The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.
My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.
Lord Bach
Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.
Lord McNally
Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.
As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.
We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled—it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.
We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing—which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised—can at present obtain expert legal advice, and “advice” is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social welfare law will reduce the number of cases going to the courts. However, the exact opposite is true. It is the availability of early advice that keeps the numbers down for our tribunals and courts. The people who use these services are not those whom the Daily Mail might choose to call scroungers or the work-shy; these are ordinary people who lead good lives and come up against the complexity of the modern state. They may have served in the Armed Forces; they may have been in all sorts of professions; they may not have led particularly successful professional lives. However, they are our fellow citizens, and if a system of law is to have any justice at all, it must look after them as much as it looks after us. The noble Lord, Lord Cormack, made this point a few minutes ago.
This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures—and I doubt that they could—to counter those arguments.
The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources—and then we will be deprived of them in our country.
Amendment 101—rather aptly named, if I may say so—is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: “Look, you should not be withdrawing legal aid in this field. Just think again about this”. This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:
“We therefore strongly support Baroness Doocey’s amendment that legal aid for casework advice on review and appeals should be retained within scope”.
It could not be clearer.
I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases—involving very little taxpayers’ money—get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way. It is common sense that we should ask the Government to say that those matters should be legally aided. That is what Amendment 12 is about. It is quite separate from Amendment 11, which is about advice at a much earlier stage.
I have a quotation from the noble Lord, Lord Phillips of Sudbury. On the matter that Clause 12 deals with, he said:
“Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals”.—[Official Report, 20/12/11; col. 1725.]
Precisely; that is exactly the point, and I hope that the House will support Amendment 12.
I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.
Lord McNally
My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded—although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.
The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint—it is nothing to do with me anyway—but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it—that is what this collection of amendments does.
Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various departments had to undertake cuts. I was actually in Downing Street—in the Cabinet Room, with the Prime Minister and the Chancellor of the Exchequer—when the pound went from $1.95 to $1.47 in a single afternoon, and we sent for the Governor of the Bank of England and then for the IMF. Painful cuts followed. I can see sitting round this Chamber people who had ministerial responsibility or senior Civil Service responsibility. They know that even the most high-minded and principled Government sometimes have to face difficult decisions and make difficult choices and cannot simply rely on the emotion of the moment.
When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say—I have heard it today—that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.
The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby—many of whom have had to take responsibility for budgets, for making cuts and drawing lines—will not do so simply in the cavalier view that this will send a message to the Government.
Legal Aid: Social Welfare Law
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, the Government’s impact assessment for the LASPO Bill accepts that legal aid cuts will lead to “reduced social cohesion” and “increased criminality”. Can the Minister remind the House how many Bills go forward when it is thought that their implementation will lead to “reduced social cohesion” and “increased criminality”, and why do the Government think that this measure will lead to “increased criminality”?
Lord McNally
My Lords, one problem with treating Parliament as a group of grown-ups is that such exercises will be open to abuse. The Government have never said that this would happen. What the civil servants did, quite properly, in their impact assessment was put forward a range of possibilities. Throughout the Bill—and I presume now that we are moving to Report he will continue on his merry way—the noble Lord has been looking at worst-case scenarios, saying that worst-case scenarios are inevitable and therefore, “Woe is me”. That is not what the impact assessment is about. It is about trying to take an intelligent and rational view, but, as I have said before, a view that these are not inevitable. This impact assessment is not an almanac; it is a look at a range of options that could happen. As such, it was a reasonable way of approaching the task ahead.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
Indeed—I fully concede that; but I have to say that I do not concede the point that I am about to make, which is that if the noble Lord were in opposition and a Bill such as this was brought in by a Government whose party was not his party, he would oppose the Bill with all the great force and passion that he could and support the amendment 100 per cent.
Some noble Lords in Committee thought that the amendment did not go far enough and did not follow the words of the Constitution Committee. This is a very modest amendment that could have gone further. We think that it catches the right note, does not try to go further than it should and is very much in the context of Part 1. If it is the position of some noble Lords that the amendment does not go far enough, that is surely an argument in the context of this debate to vote for the amendment, because its position is closer to their position than if they were against it. If the view is that the Bill should reflect the Constitution Committee’s opinion and nothing else, this is certainly the amendment to vote for.
There is nothing wrong at all with this statement of principle occurring at the start of a major Bill that if passed in its present form will transform the legal aid system, particularly as it affects the very poorest, who rely on civil justice in order to get their rights. It is therefore important that we set off in the right way. The right reverend Prelate the Bishop of Exeter—if I may say so, with respect—caught the mood absolutely correctly when he talked about the function of the law, which is to look at worst-case scenarios. He is absolutely right; the Bill does not do that. It takes a very rosy view of what will happen when, for example, there is no legal aid for social welfare law. What will happen then? I know that we will debate that in the days ahead, but it is a matter that we should consider in relation to the amendment.
I have gone on for longer than I had intended. We support the amendment completely and we very much hope that the House will, too.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, let me begin with the comments of the right reverend Prelate the Bishop of Exeter. The worst-case scenario for me would be if this Government lost control of the economy and were forced by circumstances to come back with even more draconian cuts in public expenditure than those that we were forced to make when we came into office, and which the Labour Government in their last months were also planning. That is the reality, a reality that has been faced by every department of government. If we had not taken those tough decisions, we could indeed be facing that worst-case scenario in which control of the economy was lost and even more draconian cuts were asked of our citizens.
I recall saying that I would reflect on what was said in Committee. I have done so, and so has my right honourable friend the Secretary of State. I must say that the more I have reflected on it, the less convinced I have been by the amendment proposed by the noble Lord, Lord Pannick. Many speeches—although I do not accuse the noble Lord, Lord Hart, of this—have wandered very far in the direction of seeing access to justice as a concept of legal aid blank cheques signed by the taxpayer. I know that the noble Lord, Lord Pannick, will say, “Ah, but look at my amendment. See the limitations that I recognise”. Once you have said that there are limits to expenditure, some of the high-flown phrases used by the noble Lord, Lord Clinton-Davis, or the noble Baroness, Lady Mallalieu, have to be run up against that hard decision. You are drawing lines. You are not giving everyone access to justice financed by the taxpayer. We are trying today to see, as my noble friend Lord Thomas said, whether the amendment adds anything to our debate.
Amendment 1 relates to the supply of and demand for legal services. I accept that its purpose is very similar to the purpose for community legal services in Section 4(1) of the Access to Justice Act 1999. I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.
However, against the backdrop of the Bill, we believe that Amendment 1 is unnecessary and inappropriate in the context of Part 1. The provision in the Access to Justice Act relates to how civil legal aid operates on an exclusionary basis. By that I mean that it specifies what services cannot be funded under civil legal aid and leaves open the question of services that might be funded. In that context, a provision such as that in Section 4(1) of that Act, which provides a basis for determining which services might be funded, is a useful and appropriate addition where those services are undefined.
However, in the context of the Bill, the amendment is not appropriate. The provisions of Part 1 that relate to the general scope of civil legal aid are drafted on an inclusionary basis, where the services capable of being funded under civil legal aid are detailed explicitly in Schedule 1. As such, there is no question as to what services might be funded; they are in the Bill for all to see. Consequently, the amendment based on Section 4(1) of the Access to Justice Act is not appropriate.
That tension—some would say contradiction—is underlined by the amendment itself, the intention of which is to make the provision subject to the wider provisions of Part 1, which of course includes Schedule 1 and its description of the range of services to be funded under civil legal aid. We therefore believe that the amendment is not appropriate in the context of the Bill.
Outside those technical and definitional issues, the debate has raised questions about whether there should be a duty on the Lord Chancellor to secure access to justice. I shall briefly explain why we think that that is also unnecessary in the context of the Bill. The noble Lord, Lord Pannick, quoted the Guardian article of my right honourable friend. I repeat again that the Government consider that the rule of law and access to justice are a fundamental part of a properly functioning democracy and an important element in our constitutional balance.
It is true that the legal aid reforms are aimed in part at achieving savings. In our view, the current legal aid system is unaffordable, has expanded far beyond its original scope and is not sustainable in its present form—as I think was recognised by the Labour Party when it referred to cuts in legal aid in its election manifesto. However, the reforms are also aimed at encouraging people to use non-adversarial solutions to resolve their problems where appropriate and to speed up and simplify court processes where not. As such, we consider that our reforms should strengthen the rule of law by making the justice system more effective.
The Government believe that financial assistance from the state in accessing the courts is justified in certain areas, and that is why we have retained categories of cases within the scope of civil legal aid. I noticed that the noble Lord said that there was no social welfare spending on legal aid but that is simply not true, as he knows. We have also made provision for legal aid to be granted in the limited circumstances justifying exceptional funding under Clause 9. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights, as well as rights to legal aid that are directly enforceable under European Union law.
The Government do not dispute that it is a principle of law that every citizen has an unimpeded right of access to a court. However, they do not accept the proposition that there is a constitutional right to legal aid in all circumstances and at all times. Once that is conceded, the debate is about how and where we draw the line. The Government consider that the common law right, as mentioned by my noble friend Lord Thomas, of unimpeded access to a court of law means having the assistance of the court to assert legal rights and obtain remedies to which one is entitled, having the right to challenge a decision in the courts if one wishes to do so, and not being prevented from issuing court proceedings because of an inability to pay the court fee.
The noble Lord, Lord Alton, and others seemed to be moving very close to arguing for a legal aid scheme at the point of need—a kind of National Health Service for the legal profession. I think I have mentioned before that I talked to Jeremy Hutchison—Lord Hutchison—who is on leave of absence from this House and is now in his 90s. He was one of the lawyers who made up the legal aid scheme. He said, “Our ambition was a National Health Service for the legal system”. However, the truth is that successive Governments have backed far away from that ambitious concept. Although I know that the noble Lord, Lord Bach, would have made savings in other parts of legal aid, even the Opposition have said that there would be limits to legal aid. The noble Lord, Lord Clinton-Davis, said that he was brought into the legal profession by the idea of access to justice. However, even when he came into the legal profession, and every day that he was in the legal profession, the kind of access to justice that he was referring to was never available. Access to justice with legal aid has always been restricted. We have always had to draw lines and we always will, as he well knows.
Lord McNally
The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.
The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.
The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual’s rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.
In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.
We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.
In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.
Lord Bach
My Lords, I thank the noble Lord for his reply and what assurances he was able to give—not satisfactory from our point of view, but he gave what assurances he could, particularly about another impact assessment later. I thank in particular the noble Lords, Lord Ramsbotham and Lord Pannick, and the noble Baroness, Lady Prashar, for their support for the amendment and all noble Lords who spoke during this important and interesting debate. Important issues have been raised both here and in Committee, and the House obviously believes that. I am delighted to have so much general support around the House for the amendment, although the Minister insisted that it was unnecessary and misguided.
Of course we accept that difficult decisions have to be taken by the Government. The Government think that they will save about £61 million a year, a rough figure, by abolishing legal aid for social welfare law. Our problem—I think it should be one for the House—is: how much are they actually going to save by what they intend to do about the scope of legal aid? We believe—reports suggest that we are right—that other departments will have to pick up the pieces of those cases that would otherwise have been solved or sorted but which will not be because people will not have anywhere to go to get the advice that they get now. The system that works pretty well—not perfectly, but pretty well—will have gone. We believe that the cost to the Government, whichever Government, will be much higher than any savings that the ministry will make. That is why we wanted to know more detail and hoped that the department could help us with more detail about what it believes the costs will be.
We believe that the cost to society will be very high indeed. It will not help the Government's deficit cuts plan; it may actually add to it in the end. I know that that is not what the Government intend, but we believe that that may be the consequence, which is why I have raised this issue again this evening.
I hope that the Government listened to the 5,000-odd responses to the consultation. As I understand it, 90 per cent of them were opposed to what the Government intended to do, so they may have listened, but not very carefully, I fear.
I end by saying that the cuts that the Government have decided to make cut 53 per cent of the social welfare law budget, 27 per cent of the family law budget and 8 per cent of the criminal legal aid budget. Those figures were given by the Government in a Parliamentary Answer in another place last week. They are staggering. Why has the criminal legal aid budget, which is already much the largest, been allowed to escape almost scot-free?
Lord McNally
My Lords, as the noble Lord knows well, shortly before leaving office, he introduced cuts to criminal legal aid which we agreed should be absorbed by that sector before any further examination of the criminal legal aid side. Criminal legal aid has not been free from cuts, but those cuts were his.
Lord Bach
They were, and they were opposed by the noble Lord, his party and other parties when we made them, but so be it. They were opposed during the general election campaign. I know; I was the Minister at the time. I can tell the noble Lord that, if we had been re-elected, which we were not, we would have looked further on the basis of the White Paper we produced in March 2010 for further cuts. They would have been controversial cuts, I do not dispute that. I very much hope that they would have had the support of the noble Lord if he had been in opposition at the time; somehow I doubt it.
There is much scope to have cut more from criminal legal aid. Still, 49 per cent of criminal legal aid is spent on 1 per cent of cases. The Government are taking 53 per cent away from social welfare law, which is not well resourced anyway; 27 per cent from family law; and 8 per cent from criminal law. We say that the Government are right to look for savings; they have just chosen completely the wrong savings. It is not too late for them to change their mind.
Do I ask the House for its opinion on my amendment? I have thought long and hard about whether I should do so this evening but, in all the circumstances, I beg leave to withdraw the amendment tonight.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
I was not sure whether the Government were minded to adjourn the House now, it being 10 o’clock. Clause 8 has always taken a considerable amount of attention from those inside and outside the legal profession. People are very struck by the fact that it was very much a one-way ticket; namely, that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in. Many people felt that that was very unsatisfactory.
The solution was to do it the other way around; namely, that he could put things into legal aid but could not take them out by regulation. But we see the virtues of the amendments, which are not quite the same in wording but come to the same thing, in the names of the noble Lord, Lord Thomas, and my noble friend Lord Hart. Although I will move my amendment, I would be more than happy to accept either of their amendments. I very much hope that the Government will be happy to accept one of their amendments. I beg to move.
Lord McNally
My Lords, the principles underpinning this Bill include the need to establish very clearly the scope of civil legal aid services. We need to ensure that the funding of the scheme is sustainable in the light of the historic expansion of the scheme and the cost to the taxpayer. We have made difficult choices in order to focus legal aid in our priorities and therefore we will resist amendments that seek to expand the scope of the scheme. However, I accept that a case has been made by my noble friends Lord Thomas and Lord Phillips, and indeed by the noble Lord, Lord Bach. If they do not press their amendments this evening, I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed. I can reassure noble Lords that the Government accept the amendments in principle in so far as they would provide the Lord Chancellor with a power to add new civil legal services to Part 1 of Schedule 1. I hope that will allow the noble Lord to withdraw his amendment and await the government amendment at Third Reading.
Crime: Reoffending
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I assure the noble Baroness that that is high on our list of priorities and that we intend to do so.
Lord Bach
My Lords, I think the House will be very pleased with the Minister’s comments in response to the Question today. I will ask him about Project Daedalus, which he will know about. It is an excellent scheme aimed at helping inmates at Feltham young offender institution not to reoffend after their release. It was set up under the previous Government and has the great support of the present Mayor of London, who said that it looked as though there had been a “substantial reduction in reoffending”. In these circumstances, why have the Government decided that this excellent scheme will not continue after May this year?
Health: Mesothelioma
Debate between Lord Bach and Lord McNally(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.
Lord Bach
My Lords, will the Minister confirm that the Government’s civil justice proposals mean that mesothelioma sufferers may have to pay 25 per cent of their general damages, plus their special damages for past loss, which, because of the length of these cases, can be very significant? Given that these sufferers may die in a short period of time, why will the Government not back the principle that hard-working people who have done nothing wrong should receive their full damages and not a penny less?
Lord McNally
The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out—not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord’s party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, knife crime has been a scourge on communities throughout Britain. I think my party, when in government, did quite a lot to tackle this appalling problem and yet it persists. Of course, some would say that the answer is to deal with the causes of such crime, particularly where young people are concerned. Yet the Government say that the answer is to create a new crime that is entirely covered, as the noble and learned Lord has just made abundantly clear, by existing crimes. For my part, I cannot see any logic behind it at all. Frankly, someone who uses a bladed weapon to threaten another person is guilty of a very serious criminal act, but that act is covered by existing statute law. More than that, there is guidance on sentencing and, of course, there is case law.
For our part, we will not be drawn tonight into the game that we fear the Government are playing with this legislation. It is legislative public relations, no more and no less. I look forward to hearing the Minister's response to the points that have been made so well by the two previous speakers. I wonder whether he is as proud of this piece of legislation as he was of the last piece of legislation concerning rehabilitation of offenders. I rather feel that he is not.
Lord McNally
My Lords, we believe that currently there is no offence that specifically targets the behaviour covered by this clause; namely, the most serious of threatening behaviour where people carrying a knife or an offensive weapon use it to threaten and cause,
“immediate risk of serious physical harm to that other person”.
We believe that we are sending a clear message to those who behave in that way that they cannot expect leniency.
I understand, and very much respect, where my noble friend Lady Linklater is coming from. I want to make two points, one of which I have made before to the noble Lord—I am always tempted to say “my noble friend”—Lord Judd, who I am glad to see in his place. I make them to the noble Baroness as well. I understand that these under 18 year-olds, these children, may have various and complex difficulties in their personal lives. I did not. I was brought up on an ICI estate, where there were children who had difficult and complex lives but they did not adopt crime or violence. My simple point is that even children have choices and many do not adopt a path of violence.
I speak as the parent of three young children who have just come through their late teens. I know the fear in the hearts of parents of teenagers who go out on a Friday or Saturday night. The fear is always there that one piece of bad luck, one act of disrespect, will end up in their child being severely injured or perhaps even killed by someone carrying a knife. We are addressing that fear. All speakers have acknowledged that knife crime is a serious problem. I am as pleased as anyone that there has been some decrease in knife crime, but I do not think that it does any harm, particularly in the 16 to 17 year-old age group, to do a little bit of public relations and to send out a message that it is not fashionable—it might even be plain stupid—to carry a knife, to brandish it and to threaten people with it. I do not belittle any of the examples that have been given of people who deal with the problems of violence in our society but, in putting forward this law, we are addressing a real issue and making it clear that knife crime is unacceptable. It is not the first example of a minimum sentence. Nor is it the first example of a minimum sentence for 16 and 17 year-olds. There is a minimum sentence of three years for certain firearms offences committed by 16 and 17 year-olds. That measure was brought in by the previous Labour Government in the Criminal Justice Act 2003.
The Government believe that it is right to have minimum sentences specified in law where a certain offence warrants a strong and clear message that a certain type of behaviour will not be tolerated in a decent and law-abiding society. That is why we are legislating for the courts to be able to apply a minimum custodial sentence of four months' detention and training for 16 and 17 year-olds. However, as was pointed out, the legislation builds in discretion concerning the welfare of the offender, which is sensible. The amendments tabled by my noble friends would remove the minimum sentence not only for 16 and 17 year-olds but for adults. The Government cannot accept them. They would undermine our firm intention to stamp out these crimes. Therefore, I hope that the noble Baroness will withdraw her amendment and the noble and learned Lord will not oppose the Question that the clause should stand part of the Bill.
Lord Bach
My Lords, the Committee owes a debt of thanks to the noble Baroness, Lady Miller, for having brought this difficult subject to our attention. It is not her fault that we are discussing it in the watches of the night and she has no need to apologise for taking the time of the Committee in explaining her point of view. As she said, the provision on squatting was introduced in another place with very little opportunity for scrutiny even on Report. The debate was pretty short. So this represents the first chance, and I hope not the last, for Parliament to get its teeth into these proposals.
Prima facie, the new criminal offence will demonise the absolute poorest, those with mental health issues and those who, frankly, have no other option than to shelter in properties that are, for the most part, unfit for habitation. Of course, we take the view, as does everyone else of sensible mind, that lifestyle squatting is quite beyond the pale and absolutely unacceptable—we oppose it as a principle as much as anyone else.
However, there is a big difference, as the noble Baroness demonstrated, between those few who jump carelessly into properties owned by others with the intent of abusing—severely abusing in some cases—the rights of ownership and those who have no other option unless they want to live on the streets. Anyone who lives in central London, for example, knows that the number of people living on the streets is going up as we speak. A large number of those people have no doubt, from time to time, “squatted” in the terms of what will become this legislation.
Our media, of course, are quite happy to remind us of the instances of outrageous behaviour by lifestyle squatters, but they are curiously quiet when it comes to telling us about, for example, a veteran with severe post-traumatic stress disorder who is addicted to drugs and alcohol and shelters in a property riddled with asbestos. Is he the sort of squatter whom the Government are out to get?
Squatting for the main part is already illegal and, in most instances, criminal, too. The Criminal Law Act 1977 makes it a criminal offence for any person to leave premises when required to do so by “a displaced residential occupier” or “protected intended occupier” of the premises. Parts 55.1 and 55.3 of the Civil Procedure Rules allow for owners to evict someone in a residence they do not occupy. Moreover, an interim possession order, backed up by powers in Section 76 of the Criminal Justice and Public Order Act, means that a criminal offence is committed if an individual does not leave within 24 hours of such an expedited order being granted. So given that all homeowners are protected by the criminal law, unless their property has lain empty for a substantial period and no one is imminently moving in, where does this need for reform of the law lie?
Perhaps a hint came in the signature leaks to the media. A series of reports leading up to the unveiling of this government policy focused on the very sad case of Dr Oliver Cockerell and his pregnant wife who, the ministry briefed, were thrown out of their house by squatters. However, in that case, it emerged that the police, for once, had wrongly stated that the case of the doctor and his wife was a civil issue and not one for them. In fact, as Mr Cockerell and his wife were protected intended occupiers, it is more than arguable that the police should have intervened under the current law. Their failure to do so was not atypical and the position does not require the kind of legislative, heavy-boots intervention that the Government intend.
The Welfare Reform Bill and the legal aid Bill that we are debating tonight both deal in parts with impecunious and very vulnerable people. The two Bills together will increase the number of people who have to resort to living in condemned housing out of desperation. We know, thanks to social welfare researchers, that there is a significant prevalence of mental health problems, learning difficulties and substance addiction among those who are homeless. In fact, the Government’s own impact assessment, referred to in passing by the noble Baroness, tells us who is forced to squat. It said:
“Local authorities and homelessness … charities may face increased pressure on their services if more squatters are arrested/convicted and/or deterred from squatting. Local authorities may be required to provide alternative accommodation for these individuals and could also face costs related to increases in rough sleeping in their areas. An increase in demand for charities’ services”—
food or shelter—
“may negatively impact current charity service users”.
It goes on:
“There may also be a cost to society if this option is perceived to be unfair and/or leads to increases in rough sleeping”.
When the costs are identified, as the noble Baroness said, they are reasonably substantial.
We do not believe that the Government have a clue how many people actually squat. The reason for bringing in this new piece of criminal legislation is pure populism. It is demonisation of the poor by another method. We had concerns and said so on Report in another place. Those have been reinforced, frankly, by the way in which the Welfare Reform Bill and the legal aid Bill have been carried through by the Government. We have heard much more about opposition to the plans as they now stand.
I am not saying that we agree precisely with the amendment of the noble Baroness. It may be that six months is too little. I hope that when she withdraws her amendment tonight and there is time between now and Report there will be some discussion as to what the right amount of time should be and whether the wording is appropriate.
However, if the noble Baroness were to bring back her amendment in a different form, perhaps with a longer period of time, we would be sorely tempted to support it on Report. I take the point made by the noble Baroness, Lady Stern, in her brief intervention. We were criticised incredibly strongly and sometimes with justification for bringing in too many new criminal offences by just those people who are bringing them in now. This debate and the previous one introduced two new criminal offences that are frankly not needed. What is the explanation for that?
It is very telling that the Metropolitan Police, the Bar Council and the Law Society, none of which are natural friends of the squatting community, all think that bringing this particular legislation is completely unnecessary. We look forward to hearing the noble Lord's justification for it.
Lord McNally
My Lords, beware the caveat about being sorely tempted to support the amendment. We will wait until Report to see how sorely tempted the noble Lord is. The noble Baroness, Lady Miller, said that this is a knotty and difficult problem, and so it is, but let me put it simply; the Government believe that the criminal law can and should go further to protect homeowners and occupiers. There should be a specific criminal offence that protects people from those who squat in their residential buildings.
Many residential property owners have described the anguish that they experience when discovering that squatters have occupied their properties. I say to my noble friend that local authorities too have expressed concern about this problem. The huge expense and incredible hassle of getting squatters evicted has been described.
The Government believe the harm that can be caused by squatters is unacceptable and must be stopped. The new offence would be committed where a person is in a residential building as a trespasser, having entered it as such, knows or ought to know that he or she is a trespasser and is living in the building or intends to live there for any period.
The whole point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying someone else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish, sell or let the property.
Lord McNally
It was decided that this was more descriptive of what the Bill was intended to do. I also draw the attention of the House to the fact that, late yesterday, I tabled Amendment 198, which added to the Long Title,
“to make provision about the rehabilitation of offenders”.
It is probably the only criticism that I would make of the noble Lord, Lord Ramsbotham, but I sometimes think that—rather like his desire for committees in the structures we were talking about yesterday—he gets obsessed with form rather than substance. The rehabilitation of offenders is in the Bill. What is more important, it is in the daily action of the Ministry of Justice. Ever since I became the Minister, every day I have emphasised the importance of rehabilitation, for exactly the same reasons as the noble Lord, Lord Judd, gave. It is a win-win. If you can rehabilitate, you save the public purse from having to put someone in prison again at a cost of £40,000 or £50,000 a year. You save future victims from the crimes that that person would have committed. Actually, it is a triple whammy, because if you can really rehabilitate, you get a taxpaying, constructive member of society. Everything that we have been doing, especially in Part 3 and the piloting programmes, is aimed to get effective rehabilitation.
I am very much impressed at the attention paid to my speeches at Liberal Democrat conferences. I shall take even more care over them in future. As for the rest, you will have to wait for my memoirs. I do not think that changing the Short Title at this stage of the process is helpful or will have an effect.
On what the noble Baroness, Lady Howe, said right at the end, this is an extra half day in Committee for the Bill. Perhaps if we all made a resolution to make shorter speeches, we would not find ourselves debating these issues at 23.33. In the mean time, I hope that the noble Lord will withdraw his amendment.
Prisoners: Transport
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Yes, the inquiry will go far wider. As I said, the wider review which is under way will look at both the public and the private sectors. The review’s aim is not just to hold an inquest into what happened but to learn lessons that will be helpful in the future.
Lord Bach
My Lords, the House will be grateful to the Minister for his answers to this Question. Are the Government satisfied that all those with the responsibility—and it is a difficult responsibility—for transferring prisoners are trained to a high enough standard in all cases to perform their difficult task? Prison officers certainly are. Are the Government content that everyone else who has this responsibility is trained to a high enough standard, too?
Lord McNally
Yes, I think that I can give the noble Lord that assurance. Again, standards of training is one of the things that the inquiry will be looking at. This will of course vary because we are talking about a large number of movements throughout a year and many of them are a very low category indeed. Under successive Governments over the last 15 years, the actual number of successful break-outs or escapes in transit has made this very much an exception rather than the rule. That is a sign of the improvements in transportation facilities and the training of staff. The wider review will look at this. As I said, if lessons are to be learnt, we will learn them. There is also the prospect that, with a greater use of television to allow distance interviewing of prisoners, there will be less need to transport them.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I am extremely grateful to all those who have contributed to this debate. It has been an extremely useful one. I am also grateful to the noble Lord, Lord Judd, for reminding us that this is the 200th birthday of Charles Dickens, who gave us the most well-known phrase about the law: “The law is an ass”. He also gave us the best example of the futility of litigation in Bleak House. Dickens was certainly not in awe of the law, and very few of his legal characters are particularly warm.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
The noble Lord is absolutely right. I have given my reply. That was the reply of the noble Lord, Lord Thomas, to my reply. But I am very happy to take the point. We are considering a consultation. We have said that our judgment is that it is better in rules rather than in the Bill.
Lord Bach
Should all that not have been done before the legislation comes before one House, let alone a second House of Parliament? The result of the consultation, or the Minister’s consideration of it, will probably not be known until this Bill has become law. Is that not much too late and entirely the wrong way round?
Lord McNally
The pained look with which the noble Lord, Lord Bach, comes to the Dispatch Box and implies that the Government is the first Government in the world to bring forward legislation with further consultations needed about specific regulation is a bit rich. The implications of this Bill will come into force in April 2013. We have a period of time for such consultations. As I said before, I take the point that there has to be a synchronisation in these matters. I do not think we are doing anything unusual by legislating in this way, but we take on board the points made in this debate.
Lord McNally
My Lords, in 1962—which is now, sadly, 50 years ago—part one of my degree course contained a subsidiary paper on English legal institutions. About the only thing I can remember from that course is the concept of champerty and maintenance. It therefore came as something of a shock to be told that it no longer applied, and indeed had not applied for some time.
Lord McNally
I have been trying to keep that quiet. The paper I mentioned was one of nine papers that I took in 1962 for my economics degree. The other day I found the statistics paper, which evidently I had passed. However, not only did I not know the answers to the questions, I could not understand the questions.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.
Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.
Lord Bach
My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.
I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.
Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.
From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.
The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.
I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for the constructive way in which he has responded. I hope that Part 3 of the Bill can draw on the experience and expertise around this House. I see a number of old friends and familiar faces in this area of policy. I am also grateful to a number of noble Lords for having the chance to discuss these issues in advance of them reaching the Committee. That has been of great help in understanding where they are coming from with their amendments.
Before I turn to the amendments, it may assist the Committee if I explain what Clause 61 intends to do. It replaces the current Section 174 of the Criminal Justice Act 2003 with a revised section that simplifies the existing duty to give reasons for, and explain, the sentence.
In response to the consultation paper Breaking the Cycle, the judiciary, among others, said that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added. As a result, the current legislation is difficult to find and difficult to understand, and in the day-to-day operation of the court can simply become impractical. The Government wanted to address these problems, which is why we created in Clause 61 a replacement Section 174. It has been simplified and shortened and consolidates the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirement placed on courts to explain the effectiveness of the sentence and, crucially, the duty to state in open court and in ordinary language, in general terms, the court’s reasons for deciding on the sentence. This means that not only the offender but victims, witnesses and the public can see that justice is being done.
A balancing act is required here. On the one hand, we need to ensure that courts make very clear why a sentence is being imposed and what the effect of the sentence is. On the other hand, we need to avoid burdening courts with unnecessary and prescriptive provisions that are very often irrelevant in particular cases and which, rather than clarifying the position, simply confuse victims, witnesses and offenders.
I turn to the details of the amendments and begin with Amendment 172A in the name of the noble Lord, Lord Ponsonby. I start by saying that I take the point made by the noble and learned Lord, Lord Goldsmith, about greater transparency. He will remember that when he was Attorney-General there was an obligation on victim care units jointly run by the CPS and the police to explain sentences, regardless of whether the case was brought by the CPS or was a private prosecution. The Ministry of Justice has also embarked on a transparency programme, publishing data about the outcomes of court cases. We hope that being able to see the progress and outcome of cases will give people confidence.
Legal Aid
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the equality impact assessments lay out the best estimates of the likely costs and benefits of the reforms. The equality impact assessment considers the financial implications for not-for-profit providers, of which law centres are an example.
Lord Bach
My Lords, I thank the Minister for his reply. Everyone agrees what a vital and civilising role law centres perform around our country. Everyone agrees that early legal advice solves problems, helps people, changes lives and often saves costly and unnecessary cases going to court. The effect of taking social welfare law out of scope will be to reduce the funding for legal help by law centres by 85.8 per cent. Law centres will inevitably close and many thousands of people, often the poor and marginalised, will be left without access to justice. Even the TaxPayers’ Alliance chairman wrote:
“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.
Does the Minister agree with that analysis, and would it not be an absurd and wrong result if we should end up spending more public money in order to make our country less just and less civilised?
Lord McNally
My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Yes, I would think that that was true. I understand that such cases are extremely rare. A success fee would not be the enticement to take the case.
Lord Bach
My Lords, I thank the Minister for his response. When I first accused the Government of not having accepted the Jackson package, I was very careful to say that whatever Government were in power would probably not have accepted every word of such a major report. However, it is interesting what this Government have accepted and what they have left out. In short, they have left out any defence of legal aid, whereas Lord Justice Jackson was very concerned that there should be no more cutting in civil legal aid. That is also very much the view around the Committee on Part 1 of the Bill as well as, in relation to Part 2, in the case of clinical negligence if nothing else. We think that the Government have picked the wrong bits of Jackson to support, and they have left the best bits out, which is rather careless of them.
Three senior costs judges, who deal with some of these issues daily, said in their submission on the Jackson report:
“we do not agree with the proposals set out in the Report ... The CFA regime has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to made radical changes which give no guarantee that access to justice at reduced costs will be delivered under Jackson”—
they go on, perhaps rather unfairly, to say—
“where it failed under Woolf”.
That was their view. So there is a difference—a justifiable difference—of opinion, both in this Committee and outside this Committee among those who have to decide these cases.
The Government should be warned that they should not just stick so rigidly to their formula for changing without looking at individual areas of the law. Flexibility is important, as well as having rules. If the Government are just going to say no to every exception to Jackson, I fear that, certainly in some areas, the reforms that will then go through, if the Government get their way, will be disastrous for civil justice in this country because they will mean that so many people will not be able to get justice who are currently able to do so.
This is a probing amendment, but it also has some real feeling behind it. However, of course I beg leave to withdraw the amendment.
Lord Bach
My Lords, we on this side very much support the amendment, in very much the same terms as the noble Lord, Lord Thomas of Gresford, has moved it. As he said, insolvency practitioners are appointed to help insolvent companies sue directors in order to recover money for creditors of the insolvent company. The companies are insolvent; they cannot pay for a lawyer—they have no assets. The practitioners’ job, which is sometimes a difficult one, is to recover as much money as possible. It is always in the public interest that they are able to do so, and I am sure that the Government would agree with that proposition. As both practitioners and regulators have warned, alongside HMRC and the Insolvency Service, these sorts of actions will be severely compromised in future. As the noble Lord has just told the Committee, HMRC is a major creditor, if not the major creditor, to many insolvent companies, so the public purse will itself be hit to the tune of £200 million. I remind the Minister that that is more than half of the total legal aid cuts and enough to pay for social welfare law at least twice over.
The Institute of Chartered Accountants for England and Wales, a very respected body, said:
“we are deeply concerned that the legislation in its current form could have a harmful impact on the insolvency process. Unless claims brought by insolvency practitioners are exempted, this legislation would prevent potential recovery from incompetent or fraudulent directors or bankrupts, which will result in greater losses being borne by innocent creditors when a business is made insolvent … Those creditors are usually small businesses or HMRC, who would lose potential tax receipts, a cost ultimately to the taxpayer. Furthermore, fraudulent directors and bankrupt sole traders would keep the gains they made from irresponsible management of their business”.
That is why Revenue and Customs and the Insolvency Service have lobbied the Ministry of Justice for an exemption, but to no avail.
Let me take noble Lords to the Guardian newspaper on 6 June last year, when it reported:
“A spokesman for the Ministry of Justice said: ‘We are considering the impact of abolishing CFA [conditional fee arrangements] recoverability in insolvency and related proceedings. These proceedings can bring substantial returns to creditors, including Her Majesty’s Revenue & Customs. We are therefore discussing the specific implications with a view to reaching a satisfactory conclusion.’ … A spokesman for Revenue & Customs said: ‘HMRC is in discussion with the Ministry of Justice about the implications of the Jackson Report but is unable at present to comment further on this matter’”.
The Minister can comment further on this matter in a few minutes’ time. What was the outcome of the negotiations between the Ministry and HMRC? We have heard why these cases need protection, but nothing on how this will be achieved. If the Minister is to support what is contained in the Bill, he should tell the Committee how he intends to protect against the arguments used by the noble Lord, Lord Thomas of Gresford, and myself in moving and speaking to the amendment. This is a good—if not the best—example of how wrongdoers will benefit at the expense of victims. In this case, it is even more serious, because the victims are us, potentially—the taxpayers and people of this country. That is why this particular amendment supports the proposition that a one-size-fits-all package is not right for the civil justice system and that a degree of flexibility needs to be built in. If the Government maintain their position on insolvency, the wrongdoers will gain and the creditors will lose. I look forward very much to hearing how the Minister defends this particular proposition.
Lord McNally
My Lords, I feel as any Minister would, who sees an amendment signed by the noble and learned Lord, Lord Mackay, and noble Lords, Lord Thomas and Lord Bach—the names sound like one of those formidable halfback lines from a 1950s soccer team. I know that it would be the wrong game for the noble Lord, Lord Thomas.
The amendments refer to both success fees and ATE insurance in insolvency. Just for information, Lord Justice Jackson recommended the abolition of recoverability of success fees and ATE insurance premiums in insolvency proceedings. However, we have already established that we do not simply use Lord Jackson as a defence in all matters. As the Government indicated in the other place, we are aware of the specific concerns around the impact of the CFA changes in insolvency cases. The use of CFAs in these cases, under the Insolvency Act 1986, can bring substantial revenue to creditors, including Her Majesty’s Revenue and Customs.
I cannot go a great deal further. The noble Lord, Lord Bach, has now introduced a new system whereby he makes my speech and his own speech and leaves not a lot for me to say. I am nevertheless grateful that on the record we had speeches from the noble Lord and from the noble Lord, Lord Thomas, setting out the problem in probing amendments, as they have acknowledged. As the noble Lord, Lord Bach, revealed in his speech, there are ongoing discussions between HMRC and MoJ, and the Government are considering the position in respect of insolvency proceedings. Until we have come to a conclusion—
Lord McNally
They are ongoing. I admit that sounds like that song “Reviewing the Situation” from “Oliver!” but I have no doubt that the good relations between the MoJ and Her Majesty's Revenue and Customs will produce a satisfactory result, which I will report to the House at the earliest possible moment. In the mean time, I request the noble Lord to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I would have to take advice on that. On that and the point raised by the noble Lord, Lord Avebury, I shall write to the noble Lords, as well as those who have taken part in this debate, to update them on where discussions in DWP have reached.
It is very difficult to overestimate the personal damage suffered by the individuals who have been highlighted. The Government are trying to reform the civil legal system in a way that retains access to justice. It was said that litigants would be responsible for defendants’ costs if they lost; this is not true. QOCS will apply in this kind of case, so that litigants will not be susceptible to defendants’ costs.
It is a difficult area, but our overarching aim is to create an architecture which squeezes inflationary costs out of the civil justice system. Without our reforms, high and disproportionate costs in civil litigation will continue.
Lord Bach
I was not claiming that losing claimants would have to pay winning defendants’ costs—I accept that QOCS would come into consideration; I was saying that a losing claimant would have to pay their own disbursements in those circumstances, which is a different issue. That was the point that I was trying to make.
Lord McNally
I take that point.
I think that I have said all that I am going to say on this. It is a tough case, but it would be just another concession within the range of issues that we have discussed today. The noble Lord, Lord Bach, almost gave the game away in saying, “Well, you’ve made the clinical negligence concession; why can’t you make this concession?” It would then be another, and then another, and then another, and Jackson would disappear.
Lord McNally
My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I will have to promise to write to the noble and learned Lord.
Lord Bach
The Government may not have done that analysis, but the Law Centres Federation and the CABs have. I do not have the precise figure in my head, but law centres would do about 70 per cent less work because of the matters that are taken out of scope. It would not be quite as much, of course, in the case of the CABs, but they would have a much reduced caseload which would make their existence in some cases doubtful. That work has been done by the agencies, but I agree with my noble and learned friend that the department should perhaps confirm those figures or come up with some new ones. The agencies are going to lose work.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Bach
My Lords, this concerns a very simple point, or rather a short one—I am not entirely clear whether it is simple. I would be grateful for the Minister’s response to this.
Clause 14 is headed “Advice and assistance for criminal proceedings”. Subsection (1) refers to regulations providing,
“that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if … prescribed conditions are met, and … the Director has determined that the individual qualifies for such advice and assistance”.
That is fine. Subsection (2) sets out in paragraphs (a), (b) and (c) three classes of individuals who will be entitled to this advice and assistance. My amendment would add a fourth class of,
“individuals who are involved in investigations which may lead to a caution or warning”,
as opposed to,
“individuals who are involved in investigations which may lead to criminal proceedings”.
I admit that it is a long time since I practised, but I understand that people who are cautioned are liable to have that caution recorded and for it to be on their record for a period of time. In those circumstances, would it be better for that class of person to be granted advice and assistance, as are the persons covered by paragraphs (a), (b) and (c)? I will not argue with the Government if there is a good reason for not including that class of person. I just want to hear why there is not a fourth class of person covering,
“individuals who are involved in investigations which may lead to a caution or warning”.
I beg to move.
Lord McNally
My Lords, as the noble Lord has said, Amendment 103 would allow the Lord Chancellor to provide specifically for criminal legal aid under Clause 14 to be available for individuals who are involved in investigations that may lead to a caution or warning.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available to individuals in connection with criminal proceedings if prescribed conditions are met and the director has determined that a person qualifies for such advice and assistance in accordance with the regulations. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999. Advice and assistance for criminal proceedings is distinct from criminal legal aid provided under Clause 12 for individuals in custody.
Under the Access to Justice Act 1999, the Legal Services Commission has the discretion to decide what advice and assistance it considers it is appropriate to fund. Under the Bill, this discretion rests with the Lord Chancellor. In making a decision, the Lord Chancellor will take account of any legal obligations including the requirements of Article 6 of the European Convention on Human Rights. Both sets of provisions leave the criteria for making a determination to secondary legislation.
The proposed amendment would allow the Lord Chancellor to make provisions that legal aid may be available for individuals who are involved in investigations that may lead to a caution or warning. We believe that it is unnecessary to add the suggested amendment as provision could already be made under Clause 14(2)(a). If an individual is involved in an investigation that may lead to a caution or warning, that individual must be involved in an investigation that may lead to criminal proceedings. Cautions and warnings are used, where it is appropriate to do so, to divert certain offenders from the criminal justice system as an alternative to instigating criminal proceedings. For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12. I therefore invite the noble Lord to withdraw the amendment.
Lord McNally
My Lords, at this late hour this debate is taking on a confessional nature. There has also been a little bit of topsy-turvy. For a time, I was just sitting back while the noble Lord, Lord Bach, and his colleagues were rubbishing the amendments tabled by my noble friend Lord Thomas and his colleagues, and now I am going to defend the activities of the previous Government.
As has been explained, the amendment is intended to allow the restrained assets of those accused of criminal offences to be taken into account when granting legal aid and to allow legal expenses to be paid from a defendant’s restrained assets. Before the next debate, I must check on the noble Lord’s distinguished career in government as I am not sure whether he was responsible for the Proceeds of Crime Act 2002. Was it on his watch?
Lord McNally
Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.
Lord Bach
It is very good to have the noble Baroness, Lady Buscombe, joining the debate, but if that was the best defence that the previous Government could put up for that, it was really not satisfactory. I remind the Minister that that argument has been described as,
“fallacious, and easily remedied by the simple implementation of a cap on defence fees, careful supervision by the court and/or an assessment by the court taxing officers, who are familiar with assessing what constitutes ‘reasonable’ costs in such cases”.
If that was the argument put forward by my Government at that time, I say here and now that it was a fallacious argument and not one that the present Government should fall into the trap of adopting.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
Lord McNally
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord McNally
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
Lord Bach
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, even at this late stage of the night, the mere appearance of the noble and learned Baroness at the Dispatch Box brings a smile to my face. I hope that the noble Lord, Lord Bach, does not feel any jealousy.
Lord McNally
Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.
Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.
As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.
A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.
Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.
Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.
I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.
There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.
Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, we believe that those impacts are proportionate and justified by the need to meet our objectives, including the pressing need to make savings from legal aid.
Prisons: Population
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, there are about 4,000 women in our prisons at the moment, and anyone who takes a moment to study these matters will say that that is far too large a number. We are taking forward a range of measures to look at how women who have committed crimes outside the prison regime can be treated. I pay tribute here to the landmark Corston report from the previous Administration. We are pursuing most of the recommendations, as did the previous Administration, but, like them, we have found the key recommendation specific to small units too costly to pursue. It is widely said that women need a different kind of treatment and I believe that to be the case. This is a serious problem and one that we are taking seriously in terms of initiatives on drugs, debt and treatment outside. Those are the facts.
Lord Bach
My Lords, when the Government were in their first flush of enthusiasm, they were full of claims as to how much smaller the prison population would be by the time of the next general election. Who was playing the numbers game then? How times have changed. Particularly bearing in mind the increase in crime that is now being reported, what is the current forecast of what the prison population will be at the next election in May 2015? What a contrast all this is with the days of the previous Labour Government, when crime was being reduced by 43 per cent.
Lord McNally
The commitment that we have made is to try to bring in a raft of policies that address specific problems about reoffending which are key to the size of our prison population. I am not going to play a numbers game; indeed, we never have. I look across at some of the heads shaking and nodding opposite, but I personally find this matter far too serious to play a numbers game.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Coming from a Preston girl, that is a compliment—I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.
I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common—this is something that the Minister must take back to his department—is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.
I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be—whether to the MoJ, other government departments or society as a whole—that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.
The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?
For the life of me, I cannot understand why the Government have chosen that part of legal aid—the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact—which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people’s lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.
My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.
I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks—I do not think he answered this in the debate—why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done—that is a pretty universal feeling around the Committee. It is not too late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.
Lord Bach
I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.
Lord McNally
The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.
Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.
The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.
This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.
Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.
In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.
However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.
Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.
Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.
The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.
Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Lord Bach
My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.
Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.
The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.
I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:
“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—
this is the clever point—
“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.
As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.
Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.
I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.
I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.
Lord Bach
My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.
Lord McNally
I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.
Lord McNally
As I say so often, I am not a lawyer—thank God.
There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.
Lord Bach
I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.
I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.
For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.
Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.
The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.
Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.
I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.
These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.
I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.
We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.
Lord Bach
I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.
I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.
Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,
“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.
We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:
“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,
so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.
I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.
Lord McNally
I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.
Lord Bach
We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.
I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.
Lord McNally
I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.
Lord Bach
I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.
The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.
What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.
Prisons: HM Young Offender Institution Feltham
Debate between Lord Bach and Lord McNally(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.
Lord Bach
My Lords, this is a Question about youth justice and I broaden it slightly. The Minister will know that the Government’s own impact assessment for the legal aid Bill, which is before this House at the moment, states that the proposals in Part 1 of the Bill—that is, the cutting of legal laid for social welfare law—generate a risk of increased criminality. It states:
“This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes in future”.
What is the Government’s estimate of the number of young people likely to be affected by these changes—specifically the likely number of young offenders—and how does that fit in with the Government’s policy of reducing youth crime?
Lord McNally
My Lords, we will have a very thorough opportunity to discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. Impact assessments are what they are—assessments. It may be that some of the concerns do not arise; other factors may come into play. Therefore, I do not think it is realistic for me to give an answer to that speculative question.
Community Justice Centre: North Liverpool
Debate between Lord Bach and Lord McNally(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
No, my Lords, we will look at the impact of this centre before we would contemplate doing this in any other cities, but I take the point made by the right reverend Prelate the Lord Bishop of Liverpool that this is operating in an area of very high deprivation, which I hope will be part of the assessment which the inquiry is making, taking note that it is in a particular area.
Lord Bach
My Lords, in answering a question by the right reverend Prelate on 21 June, the Minister told the House that the evaluation that the Ministry of Justice, I think, is doing internally, would be completed later in the summer. We have had very clement weather for the last few months, but no one could say that it was still summer. Has the evaluation been completed yet? If it has not, when will it be completed, and will the results be published?
Lord McNally
My Lords, it is always dangerous to give even vague dates, like “summer”, in making commitments. The study is still going on. I am confident of the integrity of the research, which is being carried out by Ministry of Justice analysts under the Government social research code. The research will be published by the Ministry of Justice. I think the safest commitment I could make now would be “as soon as possible”
Public Bodies Bill [HL]
Debate between Lord Bach and Lord McNally(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, it does not seem like a year since this House decisively rejected the Government’s firm plan to abolish the position of chief coroner by a majority of 112. It was a vote in all parts of the Chamber of which the House could be proud then and can be even prouder today. Of course I join in congratulating the Government. However, in this instance the congratulations must be slightly modified. The Government have given in at the 59th minute of the 11th hour. They deserve credit, but as the noble Lord, Lord McNally, will recognise from his position at the Ministry of Justice, there is an analogy with someone in the dock who does not deserve the credit that someone who makes an early admission of guilt deserves. This is the equivalent of a change of plea at the moment when the jury is being sworn in. It is worthy of credit, and the judge will pass a lesser sentence, but he will not show as much leniency as if the Government had given way some time earlier. It is better late than never—but it is pretty late.
Of course, this is all immensely to the credit of the noble Baroness, Lady Finlay. She deserves huge congratulations on her success today. She will be the first to say that it is not just her success, but that of others as well. However, she deserves particular praise for her brave refusal to back down over this long period. So does the Royal British Legion—I declare my membership of a local branch—and other organisations that the noble Baroness mentioned such as INQUEST and Liberty, and those on all sides of the House and elsewhere who stayed firm and argued the case for the chief coroner.
Noble Lords should make no mistake—sometimes these things ought to be said—that the Government over the past 12 months used every means and blandishment, and a few extra, to persuade, if I may put it gently, those who dared stand out of the error of their ways. Individual meetings with the Lord Chancellor were not the worst of it. Seductive compromises were offered one day and a hard line taken the next. There were meetings and letters galore. I hate even to contemplate the pressure that the brave Conservative Member Andrew Percy, who dared to challenge the Government in another place, must have come under at a certain stage. I do not want to sound churlish—I hope that that is not my style—but I do not think the congratulations are quite as deserved in this case as perhaps they were earlier this afternoon.
I have no doubt that our Justice Minister, the noble Lord, Lord McNally, played an important role in this. I also am in no doubt that the Sun, which I know many noble Lords read regularly, also played a pretty important role at the last moment. For anyone who has forgotten what they read in the Sun yesterday: they will have seen a story and then an editorial that condemned the Government in no uncertain terms for the stance that they were then taking. No. 10 reacted extraordinarily quickly. The Prime Minister’s spokesman spoke early yesterday afternoon and the change was announced yesterday evening—perhaps coincidence; probably not.
Whatever the result, the Government have done the right thing. They have accepted the chief coroner. That was argued for on all sides of this House during the passing of the Act, which was only two years ago. It is a great pleasure to be able to congratulate the Government on what they have done, but I ask the Minister who will answer this debate why Section 40 on appeals is being removed. If I remember rightly, many noble Lords took part in those debates, so why is it being removed? Among the strong and powerful arguments in report after report in the past decade, and eventually during the debate on the Coroners and Justice Act 2009 for the setting up of this post of chief coroner, the possibility of appeal on a number of issues, which is not huge, was set out in Section 40(2), as it was well nigh impossible to appeal under the present system. The only remedy, as we have heard, is judicial review, which is time consuming. As the Public Law Project argued:
“The cost of bringing a judicial review claim is considerable: in the region of £10,000 to £20,000 for a straightforward case, higher for a more complex matter. If a claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders”.
We believe that it would be preferable for the chief coroner to have the power that Parliament gave him or her during the passage of that Bill, which was agreed on an all-party basis. That sensible step which we all agreed should not be implemented straight away—that is perhaps the answer to the noble Lord, Lord Phillips of Sudbury—and that there should be a delay between the time the Bill was enacted and this section was implemented. There was no intention from any party that the appeals process would begin at once. If it remained in the Act it would be there if some time in the future a Lord Chancellor felt able to bring it in under the guidance of the chief coroner at the time. To abolish Section 40, which is what the Government propose, is the wrong thing to do.
If the noble Baroness were to put the matter to a vote—I can understand if she does not wish to do so—we on this side would support her. We regret that Section 40 is being taken out. However, I do not want to end on a depressing note. We are grateful to the Government for the action that they have taken.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for that non-churlish response. He must have been thinking of some earlier Administration when he talked about the main drive of government policy being an attempt to please the Sun.
This has been a very useful debate and I hope that I can give some reassurances. I cannot give reassurances on the question of appeals. As my right honourable friend the Lord Chancellor said in his letter, to extend,
“the appeals system was by far the most expensive element of the original Chief Coroner role proposal”.
The noble Lord, Lord Bach, as with most of the proposals, including that in the Division we had today, is rather cavalier about costs. I am afraid that the Government cannot be. I also think that enough doubts about the idea of appeals were expressed in the responses to make it prudent not to proceed with that at the moment. We have all been in politics long enough to know that simply to leave the appeals system hanging there would almost certainly invite the next campaign on this issue to commence straight away.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Bach and Lord McNally(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I hope that the House will understand that in a debate of 54 contributions, I am not going to be able to answer them all in detail this evening. Indeed, many of the questions will be better raised at Committee, with specific details of the Bill.
The noble Lord, Lord Rix, and the noble Baroness, Lady Massey, asked whether I would meet them on the specific issues they raised. Of course I would be delighted to do so. If they will contact me I shall fix something up. The noble Baroness, Lady Whitaker, asked whether the letter from Professor Ruggie could be put in the Library of the House. I will certainly arrange that. It is already on the internet. It might be interesting to the House to know that Professor Ruggie is no longer the UN special representative for business and human rights; he has joined a Boston law firm. Whether that is promotion, I do not know, but that is the fact.
The noble Lord, Lord Faulkner, came with his proposal about amendments to deal with metal theft and the dangers it poses. I cannot give him a definitive answer at the moment, other than that there is an inter-ministerial group looking at this issue as a matter of priority, and we will look at any proposals appropriate to the Bill. I have lost sight of him again—oh my God! Thank God we did not give the Speaker more powers; he would have named me by now.
It has been a very interesting and well-informed debate. Let me take to start—because he was quoted—my colleague from the other place, Mr Ward, who said that we must not let deficit reduction dominate everything that we do. Of course, unless we address the issue of deficit reduction, many of the things that we subsequently do—
Lord McNally
I stand by that quote, then. If we are going to take that attitude, and if we are going to avoid taking tough decisions, we will face far greater economic problems. This idea that somehow we can put things off until tomorrow is perhaps why we are where we are today, and why we have to take the decisions that we will take today.
I heard closely what the noble Lord, Lord Howarth, was saying. Of course, it was a wonderful speech. A number of the speeches made today were wonderful speeches, if we believe that there is no limit to the amount of money that we can spend on legal aid; that there was somehow a golden age when this was all available. However, we know well—
Supreme Court: President
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
There will indeed be urgency and, as the noble Lord knows, we have had some very good advice on the matter from the noble and learned Lord, Lord Phillips, himself.
Lord Bach
My Lords, perhaps I may say how much we on the opposition side welcome the Minister’s response to the noble Lord, Lord Pannick. If the Government will act urgently on the point that the noble and learned Lord, Lord Phillips, has spoken about, we will do everything that we can on our side to make sure that such a matter goes through Parliament as quickly as possible. Perhaps I may ask briefly about judicial diversity, in which I know the Minister has a particular role. Are the Government satisfied that they are doing enough to make sure that our judiciary is diverse enough? Many judges at all levels have spoken about this in recent weeks and it is a matter of considerable concern.
Lord McNally
I thank the noble Lord for his initial remarks about co-operation, which will again help with the sense of urgency. On the question of judicial diversity, one of the most encouraging things in recent days is the way in which members of the senior judiciary have been going public on the need for urgency on the matter. It is a fact that four members of our 161 judges in the High Court are of black, Asian and minority background. In England and Wales, four out of 42 members of the Court of Appeal are women and we have one woman on our Supreme Court.
Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (No. 2) Order 2011
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I start by thanking the Minister very warmly for his clear and thorough opening remarks and description of these orders. I have little to say about them except to express the support of the Opposition for them both. There is no doubt that the Legal Services Act 2007 will have a major, if not profound, influence in the years to come on how legal services are delivered in this country. That was clear when the draft Bill was debated and discussed by a Joint Committee of both Houses under the chairmanship of the noble Lord, Lord Hunt of Wirral, and when the Bill went through your Lordships’ House some time afterwards. I think we can see the importance of that Act in the orders before us. Alongside it there are many sensitivities that surround the bringing into force of various parts of this Act, whether large or small. I hope—indeed I am sure—that the Government and the ministry are aware of and alive to those sensitivities in deciding which way to go.
I shall say a word about the first order, which deals particularly with appeals bodies. On the face of it, it is a shame that there is not to be a single appeals body—I agree with my noble friend Lady Hayter on that—but I suppose that this is one of the sensitivities that I am talking about. It is interesting to see in the Explanatory Memorandum the consultation outcome in relation to this order. For a consultation outcome, this has a dramatic and rather more exciting history than is normally the case in such consultations and it is quite clear that there has been toing and froing before the Government came forward with this order allowing the Law Society its way in this instance. I do not for a moment suggest that that was the wrong decision. However, a single appeals body is an attractive proposition, and I wonder whether over a period of time events might lead to it.
As for the Rehabilitation of Offenders Act 1974, I start by wishing the Private Member’s Bill under the charge of the noble Lord, Lord Dholakia, well. It is relevant because, with a senior government Minister present, maybe the Government themselves will have to play a role at some stage in making sure that his Bill, which is much delayed—this came up under the Government I was proud to serve in—gets on to the statute book in one way or another. It may be in the form of a Private Member’s Bill with all the difficulties that that involves both in this House and in another place, or with a little help from Her Majesty’s Government. Certainly, if the Government were to put their weight behind the Bill of the noble Lord, Lord Dholakia, we would support it too.
However, as far as this order is concerned I am most grateful—particularly to the Minister—for describing in detail why the universal opinion of the various groups that were consulted about this was not met in terms of a slightly wider group being subject to the exemption to the existing Act. He described it very adequately. Is there any concern that by leaving out that group of people there will be some difficulties down the road? It would be unfortunate if people who should be exempted from this Act were not exempted at this stage, and if the Government had to do it on a “first today and then tomorrow” basis.
These are important issues even though they are in orders that are going through this Committee pretty quickly. I have no doubt there will be others that involve the ABS and the other important results of the Legal Services Act 2007. Bearing in mind that the Act was passed under a different Government, we will do all we can to ensure that Act comes into fruition successfully.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for that response. He is always very kind about how clear and thorough I am in explaining statutory instruments. He knows as well as I do that it is only because of the hard work of the people who sit behind me. I am very pleased that the noble Baroness, Lady Hayter, and my noble friend Lord Dholakia thanked the Ministry of Justice and the LSB for their work on this. It is exciting. I pay tribute to the previous Government. The alternative business structures will produce changes which, I suspect, will be mainly to the benefit of the consumer in the provision of legal services. What we are trying to do with these orders is to put the last pieces in place to allow them to function.
The noble Lord, Lord Bach, and the noble Baroness, Lady Hayter, both expressed the concerns that were reflected during the last debate—that we have not got a single route here, in that the solicitors have decided to have their separate body. Whether it will cause the problems of a lack of consistency, we will have to see. What I can assure noble Lords is that the LSB will be carrying out further work, and looking at appeal arrangements, and the MoJ will be working closely with the LSB in relation to this. I also understand the question put by the noble Lord, Lord Bach: have we gone too narrow in this extension? As I explained, I do not think we have. However, let us see. The concern expressed last time was that the alternative business structures may allow criminal elements in that would corrupt the new structures. We listened in this Committee and have brought forward extensions, and now think that we have got things right. Again, the LSB will follow the new structures as they go in. So far, only one new alternative business structure has been announced. The Co-op has beaten Tesco; perhaps it should now be called Co-op law rather than Tesco law.
This is an exciting development for which the previous Administration can take credit and which we have been pleased to help bring into being. We will discuss legal services in general in more detail when we get to the Legal Aid, Sentencing and Punishment of Offenders Bill in a short while. However, as the noble Lord, Lord Bach, and I have discussed before, legal services in general are in flux. The ABSs will provide an exciting new dimension to them.
On the question asked by the noble Lord, Lord Jones, I can only draw his attention to the fact that the consultations were carried out by the Legal Services Board for England and Wales and the Law Society of England and Wales. I am sure that both bodies carried out their consultations across the geographic areas of their responsibility. If he can draw to my attention the case for them not doing that, I will be happy to follow it up. However, since they are both bodies that have an England and Wales dimension and were both charged with wide consultation, my understanding is that they will have consulted in Wales.
Prisons: HMP Wandsworth
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I am not quite sure whether the system that the noble Lord refers to is still in action, but I know that Amy Rees, the new governor, has the clear direction to move with all possible speed to implement the action plan. It would be inconceivable if the Secretary of State and Ministers in the Ministry of Justice did not pay the closest attention to making sure that the recommendations made by this report are implemented with all possible speed.
Lord Bach
My Lords, this is obviously a significant and worrying report and I am sure that the House is grateful to the noble Lord, Lord Hurd, for raising the issue this afternoon. As I understand it, Wandsworth has a larger number of prisoners than any other prison in Europe—some 1,665 at the date of the report. Can the Minister either tell the House today or perhaps write to me telling us how many of those prisoners are doubled up in cells at present? Perhaps I might briefly broaden my question. Can he confirm that capital investment in the Prison Service is generally going down heavily, year on year, and that in fact there will be no capital investment by 2013-14? In the light of the fact that the largest number of prisoners ever is in prison today—the figure on 5 November was 87,749—and in the light of cuts to prison staff, and particularly to probation staff, can he tell the House how the rehabilitation revolution is going?
Lord McNally
We will return to the rehabilitation revolution on 21 November when we discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. I hope that the noble Lord will help me then with the fact that the Ministry of Justice, as part of our deficit reduction programme, has to find £2 billion in cuts. In a department that spends money only on prisons, probation, court services and legal aid, tough decisions have been made. Today it is prison spending cuts that the noble Lord does not like; I suspect that, the next time he gets up, it will be legal aid cuts that he does not like. To govern is to choose, and we have had to make some very tough decisions.
On the question of doubling up, again one of the problems for Wandsworth is that a prison built for just over 1,000 people has 1,600 prisoners. You can work out the number that are doubled up in cells. About the only good thing that I can think of in that circumstance is that they all have in-cell toilet facilities, but even that makes you squirm with horror when you think about sharing a cell containing those facilities.
Crime: Self-defence Homicide
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, as always, there is a great deal of wisdom in what the noble Lord says—and a great deal of accuracy as well. We intend to provide greater clarity with this new guidance and through the clauses in the Legal Aid, Sentencing and Punishment of Offenders Bill, which will be coming before this House shortly. It is certainly true that, in so doing, we will be bringing into statute what is already a very fixed principle in our common law.
Lord Bach
My Lords, Clause 131 of the Bill that the Minister just mentioned is the one clause that deals with this issue of self-defence. However, what is not clear about the law as it exists at present? That feeling is quite widespread across the House. Why does it need another clause in another long Bill?
Lord McNally
I think that the answer to that was indicated in the previous question and by the fact that the noble Lord has tabled this Question today. There are newspaper articles and general assertions made about what is right or wrong. Under our common law, home owners, small shopkeepers and householders can use reasonable force to defend themselves or their properties and will not be prosecuted. My right honourable friend the Lord Chancellor has made clear that he believes that the current law is broadly in the right place. However, we believe that it does no harm, in the light of a lot of these questions and articles, to make it clear in the forthcoming Bill. I think that it will do a lot of good in establishing where people, including the police, are positioned in this. It will also deter any thought that we are drifting towards any kind of endorsement of vigilantism or keeping a six o’clock special under the pillow. This is a consolidation measure to clarify the law.
Coroner Service
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I do not have those figures, but I will write to the noble Baroness. Everything we have done in studying this process is aimed at improving the efficiency of the system. I do not think that the simple removal from the reforms of the single post of chief coroner removes the fact that we are implementing the Coroners and Justice Act 2009. We have reviewed very thoroughly. We have consulted very thoroughly, as the noble Baroness knows very well, and we believe that our reforms will bring the improvements that the original Act sought to do.
Lord Bach
My Lords, just two years ago, the consensus in this House and in the other place was that the chief coroner was an essential part of a new coronial system. In spite of the views of this House, and of many outside, including the Royal British Legion, why are the Government still insistent on not appointing a chief coroner, who would be an important part of the reforms that Parliament agreed by consensus?
Lord McNally
A Government is allowed to look at an issue, examine widely, listen, consult, and then make a decision in the context of the financial circumstances it finds at the end. My right honourable friend the Lord Chancellor has decided that the immediate appointment of a chief coroner is not justified in the present circumstances. After listening to the various representations, we left the title of chief coroner in Schedule 5 to the Bill when it returned from the other place, and that will allow this House, the other place and the outside organisations to judge whether we are still able to carry through the bulk of the 2009 Act without the chief coroner. We believe we can, and by our deeds you can judge us.
Elections: Registration
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government’s approach reflects the fact that it is not an offence not to be registered under the current system. This will not change under the new system. The offence of not providing information to an electoral registration officer—for example, when making a household enquiry—will be retained. It will not be extended to require an individual to apply to be registered.
Lord Bach
My Lords, I thank the Minister for his Answer, as far as it goes. He will know that at least 3 million of our fellow citizens, and probably more, already are not registered to vote at all. The independent Electoral Commission is of the view that if registering to vote becomes a voluntary activity, as the White Paper proposes, the result could be that up to 10 million people will fall off the electoral register, and that rates could fall in some areas from 90 per cent down to 65 per cent. Up to 35 per cent of the adult population could be disenfranchised. Is such a consequence acceptable in a mature democracy? Does the Minister agree that if such an event were to happen, no longer could we claim to the world, as we can today, that in Britain we live in a democratic country?
Lord McNally
My Lords, of course it is not acceptable; but neither is it acceptable for a mature political party to go round shroud-waving on a conclusion which involved joint deliberation by the parties that the old system had become increasingly distrusted and that voluntary registration—which would eliminate, or do a lot to eliminate, fraud, and create greater public confidence in the system—should be the way forward. The way forward proposed in the White Paper gives enough guarantees and assurances to show that the kind of language that the noble Lord has just used is, quite frankly, scare tactics which are not worthy of him or his party.
Community Legal Service (Funding) (Amendment No. 2) Order 2011
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
Crime: Youth Justice
Debate between Lord Bach and Lord McNally(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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.
Legal Aid
Debate between Lord Bach and Lord McNally(12 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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 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
Debate between Lord Bach and Lord McNally(12 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
Transparency International: Corruption Perceptions Index
Debate between Lord Bach and Lord McNally(12 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
Social Welfare Law
Debate between Lord Bach and Lord McNally(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, our proposals for the future of social welfare law were contained in our response to the consultation paper, Proposals for the Reform of legal aid in England and Wales, made on 21 June. We announced that we would retain legal aid for the highest priority cases, including cases where a person is homeless or at immediate risk of homelessness or to address housing disrepairs that pose a serious risk to life or health and for community care cases. We have decided that legal aid will no longer be routinely available in other social welfare law matters, except for claims currently funded relating to the contravention of the Equality Act 2010.
Lord Bach
My Lords, I thank the noble Lord for his reply. A better name for social welfare law would be poverty law. Often through CABs, law centres and private solicitors, this legal aid goes to giving legal advice to the poor and marginalised on legal problems around housing, debt, employment and welfare benefits. The Government, as we have just heard, intend to decimate this type of cost-effective legal aid. Does the noble Lord agree with the reported remarks of the noble and learned Baroness, Lady Hale, that these changes will have,
“a disproportionate effect upon the poorest and most vulnerable in society”?
Does he also agree that this removal of access to justice—because that is what it is—is precisely what the late noble and learned Lord, Lord Bingham, meant when he wrote that,
“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”?
Lord McNally
My Lords, under our proposals, legal aid will be retained in the highest priority housing cases, where a person’s home is at immediate risk, for homelessness, serious disrepair, unlawful eviction, orders for the sale of the home, and asylum support cases relating to accommodation. Legal aid will be available in debt matters where a person’s home is at immediate risk. We will still be spending about £50 million a year on this section of legal aid.
I have read the comments of the noble and learned Baroness, Lady Hale. I have said from this Dispatch Box that if you have a policy that is aimed at the poorest in our society and you cut the budget, of course there will be an inevitable impact. But in trying to develop this policy we have tried to minimise that impact and focus our resources on those most in need.
Gender Recognition (Approved Countries and Territories) Order 2011
Debate between Lord Bach and Lord McNally(12 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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 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.
Crime: Rape
Debate between Lord Bach and Lord McNally(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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
Debate between Lord Bach and Lord McNally(12 years, 12 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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.
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
Debate between Lord Bach and Lord McNally(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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.
Justice: Civil Litigation Reform
Debate between Lord Bach and Lord McNally(13 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 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.
Young People: Custody
Debate between Lord Bach and Lord McNally(13 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, on the first part of the noble Baroness’s question, the whole thrust of departmental policy is to try to ensure that in all parts of the secure estate there is consistency of training and application in these matters. We are continuing to take advice on this. On the matter of legal advice, the Youth Justice Board commissioned Voice and Barnardo’s to provide an advocacy service in every part of the secure estate. Secure children’s homes also have advocacy services under contracts held by the relevant local authorities.
Lord Bach
My Lords, does the Minister agree that the Youth Justice Board is a crucial player in this whole difficult area of young people and custody? The Government intend to abolish the YJB and take its functions into the Ministry. The Minister uses the strange but certainly novel argument that it should be abolished not because it has been a failure but because it has been too successful. Is it not time to stop this nonsense and accept that Her Majesty's Government have got this wrong and that the independent Youth Justice Board should be allowed to get on with its vital job?
Lord McNally
That is a little wide of the mark, but I am very happy to say that we will return to this matter on Monday next, when I am sure that that question will be in the noble Lord’s opening speech. He can look forward to my response on what the Government’s policy will be.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011
Debate between Lord Bach and Lord McNally(13 years, 1 month ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, I thank noble Lords who have spoken in the debate and I congratulate the Minister for the succinct way in which he put these orders. It is not always easy to put orders before the Committee so succinctly, but he has managed it with great élan this afternoon. It is very good to have the noble Lord, Lord Marks of Henley-on-Thames, with his experience of the family courts, joining in the debate even on fairly uncontested orders. His experience will be very valuable to the House. I am also grateful to my noble friend Lord Jones for his staunch defence of the magistracy and the detailed questions that he asked about the orders. Let me say straight away that we do not oppose the orders at all; indeed, they seem to demand support and to make sense. As I understand it, they had general support from the other place and from the outside world.
The whole area of family law policy is being examined by the Norgrove committee as we speak, of course. We began that in government and the present Government have wisely carried it on. It is an important committee; we look forward very much to its report and the Government’s decisions on that report. Some of us feel that our family law needs to be brought up to present times and that many changes could usefully be made, but that is not the issue for today. These orders deal with procedure and rules and are a vital and much respected part of our legal system, which is widely—and rightly—admired elsewhere. Our procedures and rules must be known, exact and kept up to date; these orders certainly do that.
There is an interesting argument around family proceedings courts in the magistrates’ courts. I understand that the orders give the equivalent power to those courts as they do to the county court and the High Court. That is no doubt a good thing, but will the more serious cases still go to either the county court or, if they are even more serious, the High Court? I am sure that it is still the position; it ought to be, and I would not want any change to it.
My query is about Article 38 in the Family Procedure (Modification of Enactments) Order. This is not a trick question, and the noble Lord is welcome to answer at his leisure if he wants. The Explanatory Note states that:
“The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts”.
Do I take it that, where that issue has arisen until now, the family proceedings court has not been seen fit to be an appropriate venue or forum for those cases? Obviously, the cases are made more difficult if someone lacks mental capacity within the meaning of the Act. Is it really appropriate that those cases be heard in the family proceedings court?
Apart from that, we support the orders and are grateful to the Minister.
Lord McNally
My Lords, the House is extremely generous in its comments about my command of the subject. I am not a lawyer, so I feel like a lion in a den of Daniels when I look round and see the contributors. I am grateful for the comment of the noble Lord, Lord Bach, about the Norgrove review. We hope that Mr Norgrove will give an interim report in March and his final report in the autumn. I agree with the noble Lord that it will be a useful opportunity to review family law.
I also agree that we will be well aided in that review by the presence of my noble friend Lord Marks, who has already made his impact both in the Chamber and here in the Moses Room. His contribution today might be better read by the practitioners than by the House, in that he said that due notice for documents required would speed up and simplify processes. In looking at our criminal justice system over the last 10 months in my limited experience, I have frequently been amazed at how easy it is to disrupt the smooth running of the system. I hope that we can make the system work more efficiently. I am sure that his fellow practitioners will duly note his opinion about the value of the experienced district judges compared with others.
The noble Lord, Lord Jones, asked whether the destination of appeals order will apply to appeals from district judge magistrates’ courts, and whether magistrates’ courts have been consulted. The draft order relates to family proceedings in the High Court and county court only and does not apply to magistrates’ courts. On the wider issue that he raised, both the Magistrates’ Association and the magistrates’ clerks body responded to the consultation and were fully consulted. The draft destination of appeals order applies to all family proceedings, including adoption proceeding, and revokes the 2005 destination of appeals order. If that does not cover the points raised, I will gladly find out more.
The noble Lord, Lord Jones, widened his remarks a little more to ask about the magistracy. That gives me an opportunity to say that we have carried out a rationalisation of the number of magistrates’ courts. I believe that we have retained the essential strength of magistrates’ courts and of the magistracy, which is their localism. This is the 650th anniversary of the magistracy, which we will be celebrating later this year in Westminster Hall. On the attitude of the Ministry of Justice, my right honourable friend the Lord Chancellor is certainly looking very actively at how magistrates can be given more work—not less—and take on more responsibilities. We will be looking at that in various pieces of legislation later in the year.
Regarding the query on Article 38, prior to the coming into force of the Family Procedure Rules 2010, magistrates’ courts did not have the power to appoint such representatives. Only the High Court and county courts had such powers. However, under the 2010 Rules, magistrates’ courts will be able to do so. Therefore, the fact that a person lacks capacity will not require a transfer of proceedings so that a representative can be appointed. It follows that it is appropriate to omit sub-paragraph (h) from Article 15(1) of the Allocation and Transfer of Proceedings Order 2008. The Family Procedure Rule Committee considers that it is appropriate that magistrates’ courts should have these powers to avoid unnecessary transfers. However, complex cases can still be transferred in accordance with the allocation order. I have taken note of the concern that the noble Lord, Lord Bach, raised, which I hope is covered by that assurance about complex cases.
I hope that my response has covered the points that were raised during the debate—if it does not, perhaps colleagues would remind me. Like others who have spoken, I think that the order provides for a welcome consolidation of the courts and a welcome increase in responsibility for the magistrates’ courts, and I hope that, as in the other place, we can adopt these measures.
Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011
Debate between Lord Bach and Lord McNally(13 years, 1 month ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, never underestimate the value of the Whip because, but for the intervention of my noble friend Lady Northover, I would have been well into this speech and would not have moved the Motion on the previous order. I am most grateful to her.
Lord McNally
The draft order before us today amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. Specifically, the order brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales—CAFCASS Cymru—into line with those of its counterparts in England.
The purpose of the draft order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that to do so would be likely to prejudice the conduct of social work by causing serious mental or physical harm to the individual or a third party. As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use this partial exemption when replying to requests for personal data made under Section 7 of the Data Protection Act 1998. In 2000, when the DPA came into force, the Government brought forward such an exemption by order, which could be relied upon where the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party.
I should explain that, even without this exemption, in certain situations data controllers may be able to rely on the principle that information shared with a social worker was given in confidence. Therefore, it might not be fair, or even lawful, to release the information, as to do so would be in contravention of the first data protection principle in the DPA. However, the social work exemption in the 2000 order gave a strong, certain and very explicit legal basis to withhold information and ensure that social work is not prejudiced. The schedule to the 2000 order listed those organisations and functions to which the exemption could be applied. This important exemption—the subject of our debate today—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively.
With that background in mind, I will turn to the reason for the order before us today. In 2005 an order was approved by Parliament which added certain functions of CAFCASS in addition to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As Members will know, CAFCASS works with children and their families who are involved in family proceedings, and advises the courts on what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include where parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information related to social work.
On 1 April 2005, the functions of CAFCASS in Wales were devolved to the Welsh Assembly, making CAFCASS in Wales—CAFCASS Cymru—a separate organisation to that of CAFCASS in England. Unfortunately, this was not taken into account at the time of the 2005 order, and therefore CAFCASS Cymru has not been able to apply this exemption, although its counterpart in England has. As a result, the intention behind the 2005 order that this exemption should apply across England and Wales, as agreed by Parliament, has not been fulfilled. It is important that this inconsistency in the subject access regime between England and Wales is rectified and that CAFCASS Cymru is able to use this exemption as was originally intended.
CAFCASS Cymru has told us that, between 2007 and 2009, there were 23 cases where it would have considered using this exemption, had it been available. In these cases, CAFCASS Cymru relied on the principle, mentioned at the start of my remarks, that there would have been a reasonable expectation that information that children share with a family court adviser would remain confidential and therefore would not disclose the information because it could give rise to an actionable breach of confidence. However, this approach has not been tested, either by the courts or by the Information Commissioner. The extension of this exemption to cover CAFCASS Cymru will provide it with parity and will ensure a stronger, more certain and explicit legal basis to withhold information if CAFCASS Cymru considered that this would be likely to prejudice the carrying out of social work, by causing serious harm to the physical or mental health of a child.
I want to emphasise here that the Government take the issue of individuals’ rights to access their personal data very seriously. Just as we have made clear our commitment to transparency in terms of public data and official information, we are also committed to upholding people’s rights to see what information is being processed about them in both public and private sectors. Indeed, the Ministry of Justice’s recent call for evidence sought views on how the current subject access regime is working. Responses to this confirmed that individuals see this as an important right and that data controllers by and large take their responsibilities in this area seriously. But there can be no doubt that in certain, specific circumstances, such as those we are considering today, releasing information may not be in the interest of an individual, or indeed of others, including the children of the individual concerned, or those involved in protecting them.
I should make clear to noble Lords that a right of appeal remains for those individuals who believe that a subject access request has not been complied with fully. As with any subject access request, there is a right of appeal through the courts under Section 7(9) of the Data Protection Act. Alternatively, individuals may approach the Information Commissioner, who may investigate whether the data controller has complied with the obligations under the Act. In addition, this order, should it be agreed, will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of “relevant persons” in the 2000 social work order, as is the case with CAFCASS in England.
Section 7 of the Data Protection Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person or assess the reasonableness of disclosure before giving out the data. However, the personal data of a “relevant person”, as defined by the 2000 order, is not subject to these conditions of consent or reasonableness. This means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if this is required to provide the data subject with personal data under the terms of a subject access request. Consent and the reasonableness test are not factors in the disclosure.
A concern was raised in another place about how relevant persons will be protected from harm by having to release their personal data to others. It is important to remember that this draft order would allow CAFCASS Cymru to withhold information if social work was to be prejudiced by causing harm to the individual or any third party. This could include those who work for CAFCASS Cymru. CAFCASS in England, which must already adhere to this when replying to subject access requests, has told us that it is not aware of any harm caused to employees. In all cases so far it is only the name of the employee that has been released and it is highly unlikely that the individual making the request will not already know the name of that person—most likely to be a social worker—who has been dealing with their case. As such, it would probably raise more suspicion if the name of the employee in question was redacted and therefore the name is almost always released. Officials in CAFCASS Cymru have said that their approach would be similar to that of CAFCASS in England. Again, this provision would bring CAFCASS Cymru into line with CAFCASS in England to ensure consistency in the two bodies' approach to releasing personal data.
The principles about the need to maintain a strong subject access regime while protecting individuals were agreed by all parties in 2005 and these principles still hold firm. In any case, there is no reason why they should apply in England but not in Wales. Including CAFCASS Cymru in the list of organisations able to apply the exemption will not only protect individuals and ensure that social work can be carried out effectively; it will also ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend this draft order to the Committee.
Lord Bach
My Lords, I thank the Minister again for explaining these orders—perhaps not quite as succinctly as in the previous case, but I understand why—and I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the point that he has raised.
Of course, whenever exemptions are made to data protection regarding people’s fundamental right to know what data are held about them, how those data are used and what safeguarding processes there are, it is right that they should be very carefully examined. This order has been examined very carefully in another place and I have read the transcript of those proceedings. On that occasion, the matter was tested by a number of questions, particularly about the frequency of exemption already in place for England. However, Members of the other place were content and satisfied with the answers that were given; in my view, we should also be content with the order and with the way in which the Minister has outlined the order today.
There are occasions when it is not just right but important that exemptions are made to the normal rights under data protection legislation. That is common sense and is appropriate. What makes the exemption satisfactory is that, first, there is a right of appeal, which is very important in our view. Secondly, it is absolutely right that social workers, who are not very well paid but who do a pretty demanding job that is absolutely crucial and much underrated by the rest of society, should get the protection that they deserve, and anything that can make their difficult task easier should be done by Parliament, if possible. I believe that that is what these exemptions have done so far in England and will now do in Wales. Our view is that this order is sensible, reasonable and absolutely appropriate.
Lord McNally
My Lords, I am sorry that my explanation of this instrument was succinct. I turned over in my mind whether to adopt the attitude exemplified by my noble friend Lord Sassoon and the noble Lord, Lord Davies, in the earlier debate by reducing the issue to some party barn-storming by announcing that this was the coalition cleaning up a mess left by the previous Government, but I have been around this place long enough to know that we will probably make similar mistakes in legislation.
Lord McNally
This just shows how these matters are dealt with in the justice system. I also note that, as one QC eased himself out of the Benches, another QC eased himself in. I deal with these matters with great trepidation.
On our call for evidence, the preliminary result was published in January of this year and I shall ensure that my noble friend receives a copy. We are undertaking an interesting exercise in trying to future-proof as much as we can the whole of data protection. The call for evidence will be extremely useful in making what we hope will be a positive contribution to the review of the European directive. The capacity of data protection of the exchange of data has changed dramatically, even in this still young century. Therefore, the need to take a new look at data protection is extremely timely. We shall be making a contribution to the review going on in Europe and we shall also review exemptions and applications under the Data Protection Act as part of that process.
Perhaps I might associate myself with the points made by the noble Lord, Lord Bach. One was that it is important that there should be a right to access data. Successive Governments have now been committed to greater transparency, but there have to be safeguards along with that. I also therefore associate myself very much with his tribute to social workers—a group sometimes quite outrageously pilloried in our popular press—who carry out extremely difficult responsibilities on behalf of our whole society. If they are to carry out such responsibilities, the kind of protection that this order provides for them is no more than they deserve. Certainly, in this case it should apply both in England and Wales.
Public Bodies Bill [HL]
Debate between Lord Bach and Lord McNally(13 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
I thank all those who have spoken in this debate. The Minister has clearly persuaded at least one member of the governing coalition of the wisdom of his words, and I congratulate him on that. I thank him warmly for his full answer to this amendment and for dealing with the other questions that I asked. I look forward to his letter. I thank my noble friend Lord Clinton-Davis, too, for asking a very pertinent question. Like all good cross-examiners, he knew the answer to his question before he asked it.
Victims are a serious and substantial issue and I make no apology for talking about them in more general terms when I introduced my short amendment. I cannot say that I am totally satisfied with the Minister’s answer because I do not believe that the Victims’ Commissioner, a post that we set up and that the present Government very much support, was necessarily meant to be at the expense of the advisory panel, which is due to be abolished. There seems to be no reason why the two should not work hand in hand. Maybe there would not be as many advisory panels as there were before the commissioner was appointed, but the direct contact that there was between Ministers and victims of crime under the advisory panel system should be encouraged; it was of considerable use and advantage to Ministers.
My noble and learned friend Lady Scotland, who is in her place today, reminds me that she used to chair one of the panels. She says that she got a great deal of information and knowledge from it that might not be so available to Ministers in the future. This is meant as no criticism of the Victims’ Commissioner, who is an outstanding public servant, as the Committee knows well. I just ask the Government to think again about whether they should get rid of the concept of this advisory panel altogether. They should ask themselves whether the panel did not add something to the very difficult relationship between victims of crime and government.
Lord McNally
On the point about the thinking behind this, I note that a year before the Victims’ Commissioner took up her post the then Minister wrote to all the members of the advisory panel, whose terms were all coming to an end, asking them to stay on for an extra year until the commissioner was appointed. The panel members agreed to work on until May 2010, which suggests that even the previous Administration might have thought that the arrival of the Victims’ Commissioner would call into question the future of the panel. That relates to the question that the noble Lord, Lord Bach, asked me earlier about whether the panel had already been abolished. There was this hiatus because the previous Administration had not appointed a new panel. I suspect that it was thought somewhere that there would be an overlap between the Victims’ Commissioner and the work of the advisory panel.
Lord Bach
The Committee will be grateful to the Minister for mentioning that point, but it does not take away from the fact that the previous Government were not committed to scrapping the Victims’ Advisory Panel. At the time, it would have been quite understandable for a Minister, knowing that an election was due and that whoever became the Victims’ Commissioner would want to look at the position once he or she had taken their place, just to write that letter. Is it really the main, or an important, motivating force of the Government that it is worth saving £50,000 or whatever per year and that the good work done by the Victims’ Advisory Panel should be put on one side? There is a case for saying that the Victims’ Advisory Panel should continue in some form—perhaps a modified form. However, I am grateful to the Minister for his response. We will consider carefully whether we will bring this back again on Report. For the moment, I beg leave to withdraw the amendment.
Bribery Act 2010
Debate between Lord Bach and Lord McNally(13 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I agree entirely with the noble Lord’s last point: the legislation was subject to very careful scrutiny. Since coming to office, we have also subjected the Act to a wide range of consultations aimed at making sure that the Act, which passed both Houses with all-party support, was fully understood and could be implemented fully. I take the noble Lord’s point, as I think that the Government do, that any suggestion that British industry can only make advances in overseas trade by bribery does unjust damage to our reputation as a fair-trading nation.
Lord Bach
My Lords, I had the privilege of taking the Bill through this House. The Minister is quite right: it was received with widespread and vocal support from all sides of the House. That does not always happen with Ministry of Justice Bills. One criticism, however, was that legislation should have been put in place sooner, not as late as it was. As the noble Lord, Lord Hannay, has reminded us, one year after the Bill became an Act of Parliament, we still do not know when it will be implemented. Does the Minister agree that this is totally unsatisfactory and that he needs to go back to his department and insist that the Bill be implemented as soon as possible?
Lord McNally
I hear what the noble Lord says. During the period we are talking about we have not been idle. My right honourable and learned friend the Lord Chancellor and Secretary of State for Justice has met representatives of the CBI, the multinational chairmen’s group of the International Chamber of Commerce, the Federation of Small Businesses, the British Chambers of Commerce and Transparency International. We are trying to make sure that this is understood and it is going to be implemented effectively. I certainly will take note of the comments made in this House today about the sense of urgency.
Prisoner Transfer Agreements
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I will certainly take back to my right honourable friend the Secretary of State the idea of an international conference, which I presume would also come within the bailiwick of the Foreign Secretary. The key thing to remember, however, is that the idea of the prisoner exchange is for prisoners to have the right to return—for most British prisoners, to return to Britain to serve their sentence is a considerable advantage in the first place—so the aim is not to second-guess the authorities in countries where they have committed offences. It is important that we keep that in mind.
Lord Bach
We on this side absolutely accept that this is a difficult problem that needs careful handling. While making it quite clear that I am not talking about any individual case—it would be wrong to do so from the Front Bench—I think that the right reverend Prelate has a point, which I hope the Minister and his officials will look into. If someone on a fixed sentence is transferred back to this country, very little can be done in terms of releasing that person earlier than when the fixed sentence finishes, whereas if they have committed a worse offence but are on a whole-life sentence, it is easier to release them earlier. That seems to be a bit of an anomaly, and the Government of which I was a member obviously faced the same anomaly as the noble Lord’s Government. Does he agree that that is the general point that needs carefully to be looked into?
Lord McNally
I agree. I am not a lawyer, but I am advised that that is exactly the position we have in this country: the people in jail on very long fixed terms and those on life sentences are treated differently when trying to vary those sentences. I go back to the central issue, which is that the transfer of prisoners home is to allow them to serve their sentences back home, not to benefit from a review of sentences. However, I acknowledge that the points made by my noble friend Lord Avebury and the right reverend Prelate are worthy of review by Ministers. We have now received a submission from officials on this, which we will study along with the remarks made in these exchanges. When possible, we will make the House aware of our conclusions.
EU: Police and Justice
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I will have to check carefully whether “daft” is a parliamentary term, but I would have thought that such a course of action would be somewhere in that range of description.
Lord Bach
My Lords, it is very good to have the Minister back answering Questions on behalf of the Government. We missed him.
The Minister will know that, during the last Parliament, the Justice Select Committee looked at this matter with some care and, I have to say, commended the last Government for much that they did in this undoubtedly very complex field. The present Government are to be commended on their reply to the Select Committee of another place, in which they said that,
“this Government intends to play a strong and positive role in the European Union”.
We say “Hear, hear” to that.
Would the Minister agree that what are needed before we move to legislation of any kind under the Stockholm programme are evidence-based proposals and a long look before we actually legislate? Is it not the truth about this matter that it is necessary always to be sensible and practical about it?
Lord McNally
My Lords, yes it is. That is why we are following the pattern, as the noble Lord said, of looking at these matters in a pragmatic and practical way, with a mind to defending essential British interests and making sure that our judicial system is protected while also ensuring that we retain the many benefits of cross-border and EU co-operation referred to by my noble friend Lord Thomas.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I will not refer to the accessibility argument. Amendment 21B seeks to remove the provision for an exemption for geographically extremely large constituencies provided for by rule 4 in the Bill. As the Government said when the noble Lord, Lord Bach, and the noble and learned Lord, Lord Falconer, raised this issue in Committee, this exemption exists to ensure that constituencies are not created that would be impracticably large, damaging the valuable link between constituent and MP. The noble Lord asked why these numbers have been included in the Bill. We have set a limit roughly the size of the largest existing UK constituency, as the Boundary Commission for Scotland felt able to recommend a constituency of this size at the previous review, and that independent judgment seemed to us to be the best basis for a provision of this kind. The range of 12,000 to 13,000 square kilometres is simply to avoid the Boundary Commission having to draw a line resulting in a constituency at exactly 13,000 square kilometres, which might involve a very unnatural boundary.
As the noble Lord rightly says, the provision is almost uniquely applicable to the Scottish highlands. The consequences of this amendment would not, of course, be fully known until the Boundary Commission had made its report. However, it is inevitable that constituencies in sparsely populated parts of Scotland would be enlarged if rule 4 were removed. The provision at rule 4 would not preserve the boundaries of any particular existing constituency, nor was it ever intended to. Like all the Government's proposals, it is designed to allow sensible reform without departing too far from the existing experience. Some noble Lords claim that the Government are inflexible and yet support the removal of one of the provisions of the Bill designed to allow flexibility to take account of particular local circumstances. They may do so in support of an alternative scheme to deal with the highlands, although that would not be the effect of the amendment. Whatever the merits of alternative schemes, the amendment before us would simply delete sensible and practical flexibility for the Boundary Commission. On that basis, I urge the noble Lord to withdraw it.
Lord Bach
I shall withdraw the amendment; I thank the Minister for his reply. However, it seems a remarkable feature of the Bill that it picks out one constituency or part of the United Kingdom in this way. The figures referred to are those given in the Bill. I understand that the Government are unlikely to give way on this issue, and I do not think that it would be sensible to divide the House on it, so I seek leave to withdraw it.
Bill of Rights
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
The coalition agreement made it clear that this exercise would be a matter of building on the European Convention on Human Rights. That remains our intention.
Lord Bach
The Minister is well known and widely respected for his support for the Human Rights Act. Does he agree that the introduction of that Act by the previous Labour Government, supported by his party, represented a huge step forward for the liberty and freedom of the British people?
Lord McNally
My Lords, I most certainly do but, as has been said, the previous Government were taking a long, hard look at that legislation—and quite sensibly, because the Act is sometimes misrepresented and misreported. Anyone who believes in it, as I do, would also recognise that it does not have the national buy-in which I would like to see for a Human Rights Act. Our exercise will educate people and give them a greater understanding about what I referred to otherwise. It is not a Human Rights Act for villains. It is our Human Rights Act and the more we understand that, the better it will be.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
The Bill helps it in its work. This is not a time to go back to the drawing board. Most of the arguments have been rehearsed. Charles Kennedy himself pointed out the difficulty of operating in the present constituency with his five-hour drive. One of the possible consequences of the amendment is that we would be faced with even larger geographic constituencies.
We propose as a maximum size roughly that of the current largest constituency area. Since it was recommended by the Boundary Commission, we believed that it gave the best benchmark to use in our proposals. Ultimately, this is a matter of judgment. We see no reason to risk turning what are now challenging but manageable factors into potentially unmanageable and damaging factors for MPs and their constituencies in these areas. I urge the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I thank all noble Lords on all sides who have spoken in what everyone who has listened must consider to be a proper and sensible debate at Committee stage on an important matter. The Minister did not convince me in the slightest as to why the rule is in the Bill and I have a feeling that he did not persuade the Committee either. That is quite a serious state of affairs, because rule 4 stands out as being the one whose presence in the Bill cannot be understood at all. I do not, I am afraid, get the point about the Scottish Boundary Commission. I hope that the Minister will in due course help the Committee by telling us chapter and verse about the Scottish Boundary Commission, but the rule seems effectively to apply to only one constituency in the whole of the United Kingdom. If the Government wanted to exempt that constituency, why did they not just exempt it, as they have the two others and now the Isle of Wight?
I said in opening that, even if the original intention was to protect a particular constituency, it has become apparent that that objective would not be delivered. I suppose that if there is one thing worse than trying to protect a particular constituency, it is trying to protect it and failing to do so. I fear that that may have happened on this occasion. I cannot think—I think that other noble Lords are of the same mind as me—what other explanation there can be for the rule appearing.
As for other speakers, I accused the noble Lord, Lord Hamilton, the other night of being a purist. It was meant entirely as a compliment rather than an insult; indeed, he took it as though it were a compliment, which I was slightly surprised at. The noble Lord, Lord Lipsey, proposed a very sensible amendment the other night, which the Front Bench on the other side said that it would look at and take up. We very much hope that it does so, because the points that he made in his short speech tonight showed how important that should be. I am grateful also to my noble friends Lord Stevenson, Lord McAvoy and Lord Foulkes.
I was intrigued by and grateful for the speech of the noble Lord, Lord Maclennan, because he has real history in that part of the world. He said that he did not like the Bill as it was worded but that he liked our amendment even less, but I was not quite sure what he wanted. I look forward to hearing in more detail at some stage what he would like to see in place of both the Government’s attitude and ours. He said that we should be looking for votes of equal value that are balanced by a sense of constituencies being represented by an individual. We know exactly what he meant by that and we agree with him; it is exactly what we are looking for in this case. We do not see how this clause helps us to achieve that.
The noble Lord, Lord Forsyth, asked the noble Lord, Lord Maclennan, why the rule could not just be taken out and reliance made on rule 5. I think that the answer to that is that rule 5 is subject to rule 2, which is the one that sets the quota, but rule 4, which is the one that sets up this particularly odd territorial constituency size, is not subject to rule 2 in the same way. They have equal worth. If tonight we took out rule 4, we would be left with rule 5, but that would be subject strictly to the 5 per cent rule and, therefore, would not prevail. I think that that is the answer to the question that the noble Lord posed.
I do not intend to divide the House tonight on this issue. We have had a very sensible Committee debate. The Government must have heard concern from all sides of the House about this clause and I am sure that they will go away and consider carefully whether this is really the right clause to be in this Bill and whether they could come up with a better version of it. It is unsatisfactory and we will undoubtedly bring the matter back at Report. By then, all sides of the House—and I do not just mean my noble friends alongside me and behind me—will want to have a better explanation as to why rule 4 is in the Bill. I beg leave to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Not exactly, because one has to realise that, as noble Lords will know, the other place has still to take a view on the amendments that we pass. It may well be that all the amendments that have been threatened or made may succeed. Believe me, if I am not convinced by the eloquence of the noble and learned Lord, Lord Falconer, or the command of figures by the noble Lord, Lord Lipsey, I certainly have a tingle between my shoulder blades when my noble and learned friend Lord Mackay announces that he is about to abandon ship.
By the way, it has just occurred to me that of course I would not, as the noble Earl, Lord Ferrers, pointed out, make any comment about what was happening below the Bar, but it crossed my mind that government Whips in the other place might be shipping younger Members down here to take a look at us to stiffen their vote when we come to reform of the House of Lords.
Lord Bach
I am grateful to my noble friend. He is quite right. There are a number of questions the Minister can bring us up to date with when he responds on this important amendment. This is a matter that has concentrated the minds of this House a great deal over a long period of time. I think the Committee would like to be brought up to date with how the Government see the relationship between this Bill and giving prisoners the right to vote and how that would be legislated for.
Lord McNally
My Lords, this has been an extremely interesting debate. Whether it is within the scope of the Bill is very debatable indeed. Nevertheless, a number of very valuable contributions have been made, not the least the fact that the noble Lords, Lord Corbett and Lord Knight, disagree about whether prisoners should have the vote. That is part of the dilemma that we have in Parliament. When I have answered Questions at this Dispatch Box as a Ministry of Justice Minister, it has been very clear that there are strong opinions on both sides. I have never concealed my view that, like the noble Baroness, I believe that giving certain prisoners the vote would be a very useful part of rehabilitation. The prospect of being—did the noble Baroness not say that? Sorry, I thought she had. For some prisoners who have perhaps never participated in any aspect of what my noble friend Lord Phillips referred to as civic life, it might be the thing that gets them thinking about their role in society when they leave prison. I have never found the concept of prisoner voting so horrific.
Although my noble and learned friend Lord Mackay sits where a PPS usually sits, he is not my Parliamentary Private Secretary although, my God, I wish he was because he comes in with a number of interventions that are genuinely to the benefit of the whole House, if occasionally to the discomfort of the Minister at the Dispatch Box at the time.
To take the last intervention by the noble Lord, Lord Brooke, the numbers we are dealing with will be small. If you gave every prisoner the vote, you would be talking about 85,000, so you would be talking about a much smaller number spread across the whole of the country because, to clarify, the Government have already indicated that when they bring forward their proposals they will be on the basis of prisoners being able to vote in their home constituency. The issues that were raised about proxy and postal voting and the other matters relating to this could, with great value, be looked at by the Electoral Commission. I know that it is looking very closely—
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the weakness in this amendment is the first five words:
“For the avoidance of doubt”.
There is no doubt. The 1986 Act and this Bill already make provisions for the payment of the commission’s expenses, including any additional resources necessary to complete the review referred to in this clause. In evidence to the Political and Constitutional Reform Committee, the secretary of the English commission, which of course will have the most sizeable task to complete, told the committee that the commission has been working closely on the question of funding, in discussion with its sponsoring departments. Those departments are the Cabinet Office for England and Wales, the Scotland Office for Scotland, and Northern Ireland Office for Northern Ireland.
In addition, the secretary of the commission confirmed that he was confident that sufficient resources would be available to complete the review. It is the Government’s view that this is the best approach—a dialogue between each of the commissions and their sponsoring departments to ensure that their funding is appropriate. We have no doubt that the review will be conducted with a careful regard—I repeat, a careful regard—to public money. That matter, of course, can be examined at a later stage. However, there is no doubt that the commissions will have the resources that they need to complete the review, and the 1986 Act and this Bill already make provisions for that. I therefore urge the noble Lord to withdraw his amendment.
Lord Bach
I thank the Minister for his reply. I thank my noble friends Lord Soley and Lord Grocott for their contributions and support for the amendment. My noble friend Lord Grocott pressed the Minister, and I should like to press him a little further about whether this whole enterprise will make democracy more expensive or cheaper.
A great deal was made some time ago of the £12 million being saved by reducing the number of elected Members of Parliament by 50. However, as my noble friend demonstrated clearly, there are additional costs in the new proposals, not just with the referendum itself but also with the Boundary Commission. Will the price of democracy go up or down as a consequence of these reforms? The Committee and the country are entitled to know. As I said, this is a probing amendment. I am grateful to the Minister, and beg leave to withdraw the amendment.
Lord McNally
I am relying now on my responsibilities, which I think the noble Lord once shared, as the Minister for the Land Registry.
Lord McNally
I am misleading myself. I mean the director-general of the Ordnance Survey, who is an assessor. I suppose, using common sense, that if you are drawing lines on maps, it is worth having somebody who knows about maps to give advice.
Prisoners: Diet
Debate between Lord Bach and Lord McNally(13 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
There is a halal option for all prisoners, and Muslim prisoners take advantage of that option.
Lord Bach
My Lords, I was delighted to hear the Minister say that the Government support victims in just the same way as the previous Government did. However, why is the victims panel being abolished? What is going to happen to the Victims Commission? Will he tell the House about the Government’s plans for funding for the Victim Support scheme? My understanding is that they are cutting back severely on funding for victims. How does that work if they are still in favour of victims, as we were?
Lord McNally
A number of these issues will be discussed in the Public Bodies Bill that is going through this House. I am hoping, at some stage during that Bill, to be at this Dispatch Box explaining our policies on these matters. The issue of victims is not simply about victim support groups; it is central to getting at the basic causes of crime and of reoffending. We have a system where 50 per cent of our prisoners reoffend. If we can cut into that, we are cutting down the numbers of prisoners and the victims of crime.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for bringing forward this amendment. I agree entirely with the last point that the noble Lord, Lord Grocott, made that the pattern of using referendums since the 1970s has been to learn, modify and improve. That will probably go on.
The noble Baroness, Lady Liddell, gave a very good example of an injunction being brought against an election broadcast. I am always fascinated by the difference between English and Scottish law. When I ask, “What is the difference?”, the answer that I get in the Ministry of Justice is often, “They do it much better in Scotland”. That is just a passing observation. I am disappointed that the noble Lord, Lord McAvoy, still does not trust the Liberals. I really thought that we were beginning to bond. I will have to do more work on my charm offensive.
The noble and learned Lord, Lord Falconer, was quite right: this clause was brought in as a specific amendment suggested by the Political and Constitutional Reform Committee to address the guidelines for broadcasters. There is a principle to consider. Would it be right for party election broadcasts for the local and devolved Assembly elections, which will take place on 5 May, to refer to the referendum and/or make any comment on different voting systems? There is an argument that, as a final strap line, a broadcast could say, “Use both your votes on Thursday”, or whatever. We recognise that there is an issue to be discussed. As the noble and learned Lord, Lord Falconer, said, the Electoral Commission has made some comments on this as well.
I am advised that there are defects in Amendment 39AA that would bring in ambiguity. We could perhaps test that. On the second amendment, I suggest again that the noble and learned Lord does not press it and that we have further discussions to see whether it can be improved and clarified. Before the noble Lord, Lord Campbell-Savours, breaks open the champagne, I should add that my speaking notes contain lines that I have not heard since “Beyond the Fringe”. They say: “What I am saying does not mean that I agree with his amendment, but nor should it be assumed that I disagree with the amendment”.
Lord McNally
We all know that the final line of the “Beyond the Fringe” sketch was, “But neither should this be taken as an abstention”. I suggest to the House, quite genuinely, that—as the noble Baroness, Lady Liddell, reminded us—getting this wrong could cause all kinds of trouble with the best of intentions.
Lord McNally
I think I am now 2-1 up in the interventions of my noble friend Lord Newton; I am very pleased about that. It is an interesting thought. I am surprised that the other side should leap on this to assume that it was the Secretary of State for Justice. As I explained, I am here in my capacity as Deputy Leader of the House of Lords, and covering Cabinet Office business. When I studied my constitutional stuff at university, I learned that “Secretary of State” was a portmanteau term in government, not specific to any one person.
The noble Lord, Lord Lipsey, talks of scope for mischief-making. For half this Committee, we have constantly been told that this project has been driven through by Nick Clegg and Nick Clegg alone. If we go through the various Hansards, we will find that Nick Clegg has been named more often by the Opposition than any other single person. The Government have put into the Bill who has the responsibility for this legislation. It applies to something that will be carried out next May, when we will be celebrating the first of the five years of Nick Clegg being Lord President of the Council, but nevertheless it is relevant to this Bill. It is simply a matter of common sense to have him named. I agree with my noble friend, Lord Newton. In the past, there have been people who have carried the dual title of Lord President and Secretary of State because of that curious anomaly of what Secretaries of State can do. As I remember it, it used to be only the Minister of Agriculture who was not a Secretary of State. All the rest were. I am sure it is not mischief-making.
The arrangements in the Bill make sense. They allow the Deputy Prime Minister to take key decisions with nationwide effect, but also enable decisions with a specific territorial flavour to be made by the territorial Ministers. For this reason, I urge the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I shall of course withdraw the amendment but this is an interesting point because, as far as I know, it has never been done before. If the Minister has some precedent for it, I will be proved wrong. What most upsets me about the whole debate is having stirred up the noble Lord, Lord Newton. I do not enjoy doing that at all, although he does not seem much stirred up to me.
Lord Bach
My Lords, I was trying to be as polite as I possibly could be. One of the dangers of personalising it in this way, as I think my noble friend Lord Campbell-Savours is hinting, is that Mr Clegg may be either so popular that his name, as it were, in making the orders means that what he wants will occur or, heaven forbid, so unpopular that whatever he does or suggests means that what he wants will not happen. To that extent, I agree with my noble friend.
Lord McNally
On the point about Secretaries of State, I think the intention is that those in mind are the Secretary of State for Scotland and the Secretary of State for Wales.
Lord McNally
If there was to be anything specifically territorial, the Secretary of State could take responsibility there. That is my interpretation of it, but there is no great mystery about it. It is simply that, as I said at the very beginning, the Lord President is steering this Bill. He steered it very successfully through the House of Commons and we are doing the same.
Lord Bach
The Minister is being unfair to himself. The Lord President of the Council was hardly seen in the House of Commons while the Bill went through it. I think that he moved the Second Reading and did not appear again until Report. But we are seeing a great deal of the noble Lord, which is of course always a huge pleasure.
Lord McNally
If the noble Lord, Lord Rooker, wants to call me immature, that is part of the rough and tumble of politics. I am not going to say sorry. For goodness’ sake, again, I really hope that people outside read Hansard and then they can make a judgment about the handling of this Bill. I am willing to go into the details of this and argue it. We have had everything from the Mongolian elections to the sensitivities of—the Member for the Rhondda Valley, was it? I cannot remember which one it was.
Lord Bach
I am extremely disappointed that the Minister, who is normally a parliamentarian of the highest order, should on this occasion not think it right to withdraw what he said about an individual Member of Parliament. I very much regret that. It tempts me very much to call a Division on this amendment, but it is a temptation that I will resist, because I think it would be a mistake—
Parliamentary Voting System and Constituencies Bill
Debate between Lord Bach and Lord McNally(13 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I agree with the noble Lord, Lord Anderson; I have known the noble Lord, Lord Foulkes, even longer than he has. Where I would agree with the noble Lord, Lord Anderson, is that the noble Lord is a master of fertile invention—particularly when he is on the opposition Benches. What we have had today is a good debate about a matter that has yet to come before Parliament.
The amendment seeks to amend Clause 2, which sets out the franchise for voting in the referendum on the parliamentary voting system. Under Clause 2, anyone who is entitled to vote in Westminster parliamentary elections would be entitled to vote in the referendum. Members of this House entitled to vote in local and European elections will also be able to vote in the referendum, a matter we debated last Thursday.
Sentenced prisoners are currently barred from voting by Section 3 of the Representation of the People Act 1983. This bar, which has been supported by successive British Governments, has its origins in the Forfeiture Act 1870. However, as has been mentioned by a number of noble Lords, in 2005 the European Court of Human Rights found that the United Kingdom’s prohibition on all sentenced prisoners voting breached Article 3 of the First Protocol of the European Convention on Human Rights—the right to free and fair elections. I was pleased by the intervention of the noble Lord, Lord Browne of Ladyton, because it is important to remind people when we are debating our responses to decisions of the European court what its origins were.
I was recently at a meeting where the daughter of Sir David Maxwell Fyfe was present. It was worthwhile for the noble Lord, Lord Browne, to remind us of the major contribution that Sir David and other British lawyers made to a convention that was seen as a response to the horrors and excesses of the untrammelled tyranny that Europe had just experienced. Of course it is important that we look at the decisions of the court in the light of our own experiences and customs, but I am grateful to the noble Lord, Lord Browne, for his reminder.
As Mr Mark Harper, the Minister for Political and Constitutional Reform, made clear in the other place on 2 November, the Government accept that there is a need to change the law. Ministers are currently considering how to implement the judgment and, when the Government have made a decision, their proposals will be announced to Parliament in the usual way. There will then no doubt be a full debate on the issues, giving Parliament the opportunity to discuss the issues reflected in this debate.
Lord Bach
As I understand it—I may be wrong—the Lord Chancellor, the right honourable Secretary of State for Justice, said last week in answer to questions on the sentencing Green Paper, when this topic came up, that a decision would be made by the Government and announced publicly by the Christmas Recess. Can the Minister confirm that?
Lord McNally
I cannot confirm it because I do not know. If the Lord Chancellor said that he must know about the timetable. However, I am not in a position today to confirm or otherwise whether such a decision is imminent. When it is, it will be announced to Parliament and I am sure that the usual channels in both Houses will find time for a debate, which will be, I suspect, very much along the lines of today’s debate.
Lord McNally
I have absolutely no idea. I cannot, in the Committee stage of one Bill, start committing the Government to parliamentary time for another Bill. One would almost think that the Benches opposite were trying desperately to get past four o’clock, whereas I know that they are probing me and they continue to do so.
Lord McNally
I withdraw that remark as I can see how upset the noble and learned Lord, Lord Falconer, is about my aspersion.
Legal Aid
Debate between Lord Bach and Lord McNally(13 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, on 15 November 2010 the Government published proposals for reform of legal aid, including social welfare law. We propose that legal aid be retained in the highest priority cases—in debt and housing when someone’s home is at immediate risk, for homelessness, and in cases involving serious disrepair. We will retain legal aid in community care cases. Under these proposals legal aid would no longer be routinely available in other social welfare law matters.
Lord Bach
My Lords, I thank the noble Lord for his Answer. I accept that savings have to be made in the legal aid budget, but why, in the Green Paper, are the Government so ruthlessly targeting social welfare law, particularly during a recession? There is to be no legal aid for welfare benefit advice, none for education advice, none for employment advice, and precious little for housing and debt advice. Sixty-eight per cent of the legal help scheme is to be cut. Does the Minister not understand that appropriate legal advice, given early, can and does help solve multiple problems, changes lives, and prevents huge social costs later on? If the noble Lord’s party were in opposition today, it would, and he knows it, oppose these proposals with all its might. Why will it not do the same today?
Lord McNally
My Lords, I think the noble Lord gives the clue to his question. As he said very honestly in his response to the original Statement a couple of weeks ago, when in government, the Opposition were planning cuts in legal aid. Whenever one makes cuts, one has to draw the line somewhere, and the Opposition are rightly leaping to the defence of people on the wrong side of that line. We have made a decision in terms of making savings in the legal aid budget and we have done so in a way that we believe targets help to the most vulnerable.
Coroners and Justice Act 2009
Debate between Lord Bach and Lord McNally(13 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, Section 51 of the Coroners and Justice Act, supported by the noble Lord when in opposition and indeed strongly encouraged on those Benches by the noble Lord, Lord Thomas of Gresford, is not now to be implemented. The section broadened the scope for legal aid so that bereaved service families would get legal aid for an inquest. If it is not implemented, some service families will receive legal aid only if they pass an exceptionality test. Will the noble Lord who speaks for the Government make a firm promise, indeed a guarantee, to the House that legal aid will be given in every inquest where service families ask for it?
Lord McNally
My Lords, the noble Lord is right. We are not taking forward Section 51 of the Coroners and Justice Act 2009. On military inquests, exceptional funding is almost invariably provided on the basis of a recommendation by the Legal Services Commission. I do not think that there is any question of such funding not being available.
Coroners: Terminally Ill Patients
Debate between Lord Bach and Lord McNally(13 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, as the noble Baroness will be aware, the coroners’ service is under local jurisdiction and the protocol established in Manchester is something that has been decided between the coroner’s office and the police in Manchester. It does give us concern and the department intends to issue guidance under its new powers which we hope will smooth out some of the variants in how coroners apply their powers. This is one of those that will be looked at.
Lord Bach
The Minister will know that the director of the Royal British Legion, no less, has said that the Government’s decision to scrap the new post of chief coroner is a deep betrayal of bereaved service families. Does he agree that during the passage of the Coroners and Justice Bill all sides of this House were as one in believing that not only was the reform of the coronial system an urgent necessity but also that the establishment of a chief coroner, along side a chief medical officer, with powers to set national standards, to lead, and to hear the new system of appeals, was at the heart of the reforms? Why have the Government taken the absurd and counterproductive step which, in the words of the co-director of INQUEST, renders the new model “completely hollow” before it has even started, and a step that has, moreover, managed so deeply to upset bereaved service families and the Royal British Legion?
Lord McNally
My Lords, I am sorry that the Royal British Legion has made that judgment. The decision not to go ahead with the chief coroner was made, as the noble Lord knows, mainly on financial grounds. The setting up of the post would have been expensive. The alternative that was put forward in my Written Statement is that we are going to take much of what was in the legislation in-house in the Ministry of Justice and do the tasks ourselves. I am well aware that in so doing we set ourselves a pretty important task because, as the noble Lord rightly said, when the Coroners and Justice Bill was going through this House all sides wanted to see an improvement in consistency in the coroners’ service. That is what we intend to do in-house and we will be judged on our performance.
Prisons: Population
Debate between Lord Bach and Lord McNally(13 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I pay tribute to the work of the Youth Justice Board. As the noble Baroness said, during its time it has overseen a very welcome drop in youth offending. It is not disappearing: its work will be reabsorbed into a unit within the Ministry of Justice.
Lord Bach
My Lords, of course it is common sense that if reoffending rates fall, fewer people will go to prison. However, how are the Government planning to get reoffending down when the comprehensive spending review plans to cut 10,000 jobs from the Prison Service and the National Probation Service? Does the Minister understand—I am sure that he does—that it is utterly and completely unrealistic to argue for cutting the number of prison inmates by 3,000 while at the same time decimating the National Probation Service?
Lord McNally
My Lords, first, the job figures cover a five-year period, and in some cases the reductions will be absorbed by natural wastage. Some of the excessive language that has just been used ignores the fact that the Administration will genuinely look at alternatives to prison. What has struck me in the very short time that I have been in this job has been seeing examples—often very small examples—of interventions with prisoners that have an extraordinary impact on reoffending. There was an example on “Today” last week of a charity finding accommodation for prisoners before they were released. Among the prisoners with whom it was working there was a 20 per cent reoffending rate rather than the 80 per cent in other categories. I believe that there are alternatives and I hope that the Green Paper will give scope for an intelligent and non-hysterical debate about these factors.
Political Parties, Elections and Referendums (Civil Sanctions) Order 2010
Debate between Lord Bach and Lord McNally(13 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
I am very grateful to the House for that acknowledgement. Both as treasurer and chairman I could be affected by the legislation that is now on the statute book.
I congratulate the Electoral Commission on the note it sent to noble Lords on this order, but I invite it to use its considerable powers—and they are considerable, as has been pointed out in the debate—with care, tolerance and humanity, bearing in mind the voluntary nature of so much political activity in this country. We support the order.
Lord McNally
My Lords, I shall reply briefly to this debate. I am sure that we are all impressed by the climb of the noble Lord, Lord Bach, from treasurer to party chairman. Disraeli called that climbing the greasy pole.
I shall also respond briefly to the noble Lord’s point about the Ministry of Justice. Twelve years ago, I served on an inquiry, initiated by this House and chaired by the late Lord Slynn, into whether the ethos of public service was still alive and well in our Civil Service after the changes that had taken place in the 1980s and 1990s. Our report stated that yes, it really was alive and well—people in our public service were motivated by a sense of public duty and public service. Since returning into government five months ago, my experience has been such that I would not change a word of that report. I have been much moved and impressed by the dedication of the public servants with whom I have worked at all levels. I am well aware that percentages are meaningless for the individuals concerned. For them, the unemployment is 100 per cent. Therefore, we will try to manage the changes that we judge to be inevitable with a duty of care to those people and with as much humanity as we possibly can.
I am very familiar with this topic because more than a decade ago I was on the Benches opposite arguing about the Bill and many of the things that the noble Lord, Lord Martin, raised. I remember the noble Baroness, Lady Gould, and myself, as two former party officials, pointing out that the Bill was couched in terms that made the treasurership of a political party sound like one of those golden prizes in politics, whereas the hard truth is that it is usually given to someone who has inadvertently left the room at the wrong time. It was argued at the time that the commission would have all kinds of talents except perhaps the most valuable talent of all—the ability to run elections at the sticky end for the political parties. The most recent appointments to the commission have been an attempt to remedy that, because the nominees have come from the political parties. I hope that that answer meets the point that was raised.
The noble Lord, Lord Martin, and my noble friend Lord Tyler asked whether the heavy hand of sanctions would come down on inexperience or on genuine mistakes. The Electoral Commission, in putting forward how it wants to approach these matters, said:
“We recognise that many of those responsible for complying with the law on party and election finance are volunteers … The new civil sanctions will allow us to use more constructive approaches to secure compliance in cases where the law has been broken. For example, we could issue a statutory notice designed to improve future compliance, rather than just imposing a less flexible penalty such as a fine.”
As the noble Lord, Lord Bach, said, a lot of work was done on this before the general election, and this order reflects that. The thinking behind it is that the Electoral Commission was faced with using either a tap on the wrist or a criminal prosecution. The order gives it a range of measures. What is in the order, and what is in the remarks that I made when I introduced it, is the point that the Electoral Commission is in no doubt that proportionality will be expected of it. With political experience in the commission, I hope that it will be able to use these powers with due proportionality and that there will be no sledgehammer, as the noble Lord, Lord Martin, and my noble friend Lord Tyler feared.
My only other point is in response to my noble friend Lord Tyler, who asked about the funding of political parties. This is a firm commitment in the coalition agreement. It was mentioned in the Queen’s Speech. I am tempted to say that the Government will move directly to the measure as soon as reform of the House of Lords has passed, but that might be seen as not the kind of commitment that the House is looking for. As my noble friend Lord Tyler said, noble Lords on all sides of the House know that in the previous Parliament we came very close to getting agreement on party funding. The coalition Government are committed to try again and we hope, as the Opposition are nodding vigorously, that if we initiate a new attempt to get agreement on party funding, we will succeed this time.
Lord Bach
I absolutely agree with everything that the noble Lord has said, but if he wants to know the reason why the talks on political funding failed—as Christopher Wren said when asked for what his monument would be—he should look around him. It is the people with whom he is in coalition who have prevented it happening.
Lord McNally
I would prefer to leave those matters to the historians. We are looking forward. The Committee on Standards in Public Life is making a report. The report to which my noble friend Lord Tyler referred is on my desk at the moment. I think that we have a really good chance of taking matters forward. As I have said before, all the major parties have at some time or other faced problems, embarrassments and difficulties because of our way of funding political parties. If we really apply ourselves early in this Parliament to the problem, we could and should find a solution.
I commend the order to the House. It will help the party activists. I finish by endorsing the comments made by my noble friend Lord Tyler and the noble Lords, Lord Martin and Lord Bach, who all have campaign medals as party activists. Nothing annoys me more during a general election than knocking on a door only to be told by some proud person that they never vote and that we are all in it for what we can get. We know that our democracy works because of the tens of thousands in every political party who are willing to do those hard, dull jobs such as sticking things through doors and knocking on the doors of perfect strangers to engage them in discussion. They are the people who make our democracy work. I pay tribute to them and hope that this order will make that voluntary work a little easier.
Human Rights: Spending Cuts
Debate between Lord Bach and Lord McNally(13 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I can only repeat what I have said; for all the decisions in all the departments, the departments are asked to look at how protection can best be given to the most vulnerable.
Lord Bach
Will the Minister ensure as best he can, given his strong support for the human rights agenda, which is appreciated, that his Government do not arbitrarily remove financial support from the institutions and bodies that protect human rights in this country? Further, would he confirm, as alleged in a recently published booklet, Common Sense: Reflections on the Human Rights Act, that at the post-coalition Liberal Democrat party meeting, a big meeting held in Birmingham on 16 May, he threatened to resign if the Human Rights Act was repealed by this Government?
Lord McNally
On the first part of that question, all the groups will have to see what happens in the public expenditure review. On the second part, I did say that if at the end of this Government’s term there was no Human Rights Act, there would be no Tom McNally—but I also suspect that if that were the case, there would be no William Hague either. We are both determined, as the Foreign Secretary said, that there will be no downgrading of human rights under this Government.
Crime: Youth Crime and Antisocial Behaviour Commission
Debate between Lord Bach and Lord McNally(13 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
I share all the descriptions of the report that the noble Lord used. It has come at an extremely opportune moment. I cannot guarantee that every last recommendation will be in it but, as he said, it comes from a very good stable. I think that, in drawing up the Green Paper and carrying the debate forward, it will be reflected in many of the things that we want to say.
Lord Bach
My Lords, perhaps I may say from these Benches that we too welcome the report and we look forward to the Government’s response as soon as is possible. Does the Minister agree, first, that the decline in the number of children and young people in custody by around one-third, as the report mentions, is to be widely welcomed and, secondly, that in some cases, alas, custody even for those so young is necessary? Thirdly, will he assure us that the Government’s policy is, as the report suggests it ought to be, that custody should be a last resort?
Lord McNally
My Lords, I have no hesitation in endorsing those three points, in particular that the whole thrust of government policy—as I think that it was with the previous Administration—is to make custody for young people a last resort.
Immigration: Refugee and Migrant Justice
Debate between Lord Bach and Lord McNally(13 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I will take the last point first. Yes, there is bound to be a certain amount of disruption if an organisation that covers 7 per cent of cases goes into administration. However, I can assure the House that the Government are giving high priority to minimise that disruption. On whether other non-profit-making practitioners are facing difficulty, it is true that there have been complaints about the change in funding and fees, which was made by the previous Administration with an eye to saving taxpayers’ money. The change is not popular but, as my right honourable friend the Lord Chancellor said in another place, the organisations are coping. Trying to balance the good work that these organisations are doing against the taxpayers’ not-bottomless pot is difficult.
Lord Bach
My Lords, I am delighted that the Minister has praised those who worked for Refugee and Migrant Justice, which over a number of years did an excellent job. I am also delighted that the Legal Services Commission is ensuring that the existing clients of that organisation continue to have proper advice and representation. Are there estimates of the extra cost to the Legal Services Commission in ensuring that proper advice and representation from fresh providers?
Parliament: MP Numbers and Constituency Review
Debate between Lord Bach and Lord McNally(13 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, my noble friend will know that the sole objective of this exercise is to bring greater fairness to our electoral regulations and equal weight to votes. He is right, of course, that common sense and a sense of history and of geography will have an influence on this, and we will consider the implications for Wales and the other nations and regions of this kingdom when we come forward with our proposals.
Lord Bach
My Lords, the noble Lord, Lord Roberts of Llandudno, is quite right; local consultations, representations and involvement in boundary reviews, particularly this boundary review, are vital. The Liberal Democrats have always been proud of their commitment to local democracy. My question is: will this commitment survive? If promises such as the ones on VAT can so easily be shredded, how can the Minister convince the House that this commitment to local democracy will not be sacrificed in due course?
Justice: Legal Fees
Debate between Lord Bach and Lord McNally(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, we recognise the sense of urgency, but also the complexity of the issue. As my noble friend will know, the proposals made by the previous Government ran into trouble at the other end of the building. We are looking at the Jackson report and we will treat the matter with the urgency that my noble friend said that it deserves.
Lord Bach
My Lords, the Minister knows that on 25 March last, this House agreed the statutory instrument that would have given effect to the intention of his noble friend Lord Lester. Will he please use his undoubted great influence in government to ensure that that intention is fulfilled and that that happens soon? It needs to. This is a bit of a scandal. We cannot wait for Jackson. We look forward to the Bill of the noble Lord, Lord Lester, in due course but this needs quick government action. Can the Minister please do his best to ensure that that happens?
Lord McNally
I can give assurances that we will treat the matter with all due seriousness. Whether we will follow the same path as the previous Administration is more questionable. As the noble Lord will know, Lord Justice Jackson has made a different recommendation about how to deal with this problem. We will weigh up what he has argued in his report and consider the debate in this House and other views on what the previous Administration was proposing to do.
Parliamentary Constituencies: Boundaries
Debate between Lord Bach and Lord McNally(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, will the noble Lord confirm that the Conservative-Liberal coalition’s plans to reduce the size of the Commons will make it smaller than at any time since the passing of the Great Reform Act in 1832? I remind him that the population is now 61 million; in 1832 it was 17 million. Does he, as a former Member of Parliament, as he mentioned, and as a Liberal Democrat really believe that the citizens of the United Kingdom have suddenly become overrepresented in the House of Commons?
Lord McNally
The size of the constituency is a matter for discussion. In the present House of Commons, as is well known, it ranges from around 100,000 people to just over 20,000. There are reasons for those extremes but within them there is plenty of room for discussion of what would be a reasonable size of constituency for a Member of Parliament to look after. As well as the differences in population since 1832, there have been great changes in the communications and facilities open to Members of Parliament, and to the staff and assistance that Members of Parliament get.
Elections: Fraudulent Registration
Debate between Lord Bach and Lord McNally(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, I share the aspirations of my noble friend, but it is fair to put the case into perspective. There were problems at 27 polling stations out of 40,000. That was a bad piece of public relations and terrible pictures went around the world, but in fact represented a very small percentage of the actual turnout.
On the powers of the Electoral Commission, I think it is true to say that it has few teeth; whether it should be given more teeth or its powers transferred elsewhere is a matter for discussion and examination after we have its report on the recent general election.
Lord Bach
My Lords, all sides agree that individual registration is the way forward. However, does the Minister agree that the danger is that if we move too quickly, it is a near certainty that many of our fellow citizens will drop off the register, thus adding to the 3.5 million people whom the Electoral Commission estimates are currently unregistered? Does not the Northern Ireland experience, where 10 per cent of the population immediately fell off the register following a sudden switch to individual registration, show us how careful we must be?
Lord McNally
My Lords, it is quite clear that the noble Lord, Lord Bach, is holding on to his old briefs. Yes, that is exactly why the implementation of the new form of registration has been taken at a measured pace. The experience in Northern Ireland was of a very large drop. However, again, we have got to get into perspective the fact that 91 or 92 per cent of people are on the electoral register. We are trying to balance the need for a clean and credible register against the points of caution the noble Lord has pointed out.
Children: Criminal Responsibility
Debate between Lord Bach and Lord McNally(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
One of advantages of the coalition is that I am now able to look at the wide body of research that comes from all the parties. I do not think that it is a party political issue; nor is there a simple, ideological solution. However, as a complete newcomer to this issue, I think that some solutions have been found. As I have said previously, we fully intend to follow the direction of travel of the previous Administration, while of course taking into account the experience of our sister coalition party as well.
Lord Bach
I thank the Minister for his generous comments; the comments that we received from around the House when we were in government were not always quite so generous. Will he ensure that, when the cuts come, the important work being done in this field which he has been generous about is not cut? It is crucial that it remains, whether voluntary or statutory.
Lord McNally
We shall certainly do our best, because the figures also show that making short-term cuts often leads to government expenditure such that it would be cheaper to send young people to Eton than to keep them in custody.
Prisoners: Voting
Debate between Lord Bach and Lord McNally(13 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, as the Minister will recall, this question has been asked many times in this House during the past 18 months. Before the election, the Conservative Official Opposition were strongly in favour of the steps taken by the then Government to implement the ECHR ruling. The Liberal Democrats were equally strongly against our approach, accusing the then Government of dragging their feet, so I think that the House would be grateful to know the view of the present Government. Why is there no mention of this issue in The Coalition: Our Programme for Government? Is the issue not important enough for the document, or is it just too difficult?
Lord McNally
That comes from a Minister who did not even get “afresh” into any of his answers over a long period of time. He will be well aware that the court slightly moved the goalposts, in its decision of 8 April on Frodl v Austria, which narrowed even further the terms under which votes could be denied to prisoners. Given that and the fact that Ministers have just come into office, I think it perfectly reasonable that we be given some time to look at this. At the meeting of the Council of Europe in September, we intend to fully update the council on our thoughts on this matter.