Justice and Security Bill [HL]
Lord Clinton-Davis Excerpts(12 years, 5 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the United Kingdom’s security and intelligence services do superb work in keeping us safe. But if we are to be true to the democratic values that they fight to defend, it is right that their actions should be subject to proper judicial and parliamentary scrutiny.
Every Government must find a way to resolve the competing demands of liberty and security. It is one of the most important challenges to government, and one of its key responsibilities. We need to consider with great care how we strike that balance. I can assure your Lordships that in bringing forward the Bill, Ministers have sought to exercise the care required to strike that balance.
It is because the Government are not satisfied that our system is delivering this scrutiny as well as it should be that we are bringing forward the Justice and Security Bill. The Bill seeks to address three widely recognised problems. First, a number of civil cases cannot be heard by a judge because they hinge on national security-sensitive evidence that cannot be disclosed openly. At present the Government’s only options are to ask the courts to strike out such cases as untriable or to try to settle them, often for large sums of money, even where they believe that a case has no merit. Secondly, a remedy in intellectual property law has recently been extended to allow someone bringing a claim outside the United Kingdom to apply to a court in London to force disclosure of intelligence information held by the British, including information provided by our allies. This is already seriously undermining confidence among our most important partners, including the United States. Thirdly, oversight of the intelligence community lacks independence from the Executive and has too limited a remit to ensure full and effective accountability.
The response to these problems that I am outlining today has its origin in the Justice and Security Green Paper published last year and noble Lords will be aware that the proposals it contained were the subject of extensive debate by the public, stakeholders and the media. The Government listened carefully to the views received during that consultation. While many respondents acknowledged the underlying problems that our proposals were trying to sort out, there was also considerable concern that our plans for closed material procedures—so-called CMPs—were excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedoms. We have therefore extensively revised our proposals by narrowing their scope and strengthening safeguards. The case I want to make today is that the plans in the Bill are sensible, proportionate and targeted at a genuine and serious problem.
Lord Clinton-Davis
I take it that the noble and learned Lord is aware of the severe criticisms launched by Mr Andrew Tyrie, the Member of Parliament for Chichester. He has come to the conclusion that the proposals in the Bill,
“offend the principle of open justice”.
When the noble and learned Lord says that these issues have been ventilated, has he taken into account the views that have been expressed?
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clinton-Davis Excerpts(12 years, 10 months ago)
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Lord Clinton-Davis
My noble friend has put his finger on the spot. The issues we are discussing are of prime importance, particularly for people who are not members of trade unions. I hope that they would be, but they are not, and we have to face up to the facts. We are talking about people who are particularly vulnerable, and I hope that the Liberal Democrats in this House are equally concerned about this issue. Employment law should enshrine issues which are vital to protect the lives of ordinary people. In that regard those who, unwisely or wisely, are not members of trade unions should be properly protected, but they are not. Indeed, they are going to be worse off if this particularly noxious proposal is carried.
I hope that the Minister will see sense, but I have seen little sign of that. He knows that I have a high regard for him, but I am surprised that he is part of the present coalition—I thought more highly of him than that. Vulnerable people need to be protected and I am concerned that that is far from being the case at present.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, obviously, as the noble Lord, Lord Bach, said in his introduction, the purpose of the amendment is to make legally aided advice, assistance and representation available for all employment matters.
I have said from the Dispatch Box on one or two occasions in the context of these debates, and I have heard my noble friend Lord McNally say it—no doubt, he has also said it on many occasions when I have not been here—that we are faced with a need to prioritise resources. Clearly when individual issues are properly the subject for debate, it is always possible to make a case for that particular sphere of law or to bring that particular subject within scope. That has been evident from the contributions of noble Lords in this debate. Given the limited pot—it is not a bottomless pocket—my noble friends have had to address how we prioritise. As has been said on numerous occasions, we believed that the more important objective and priorities were those involving life, liberty or homelessness. As a result, we did not feel able to include within scope the employment law issues described by the noble Lord, Lord Bach, and others in the context of the amendment.
It is also important to remember that one of the other things that we have looked at and that has been addressed is where there are other opportunities for funding to be made available. That was touched on particularly by the noble Lord, Lord Bach, when he moved the amendment. Also, employment tribunals were designed, at least initially, to be simple. Their purpose is to enable parties to make or respond to a claim without the need for legal representation. While we recognise that clients find advice in the preparation of their case undoubtedly useful, when these tough choices had to be made we did not consider that this group of clients were generally likely to be in the category of particularly vulnerable people whom we have provided for in other parts of the Bill. We do not accept that the tribunal cannot be accessed or that justice cannot be obtained without legally aided advice.
In fairness, the noble Lord, Lord Bach, quoted from the Government’s consultation paper, in which we outlined other sources of advice such as the free helpline of the Advisory, Conciliation and Arbitration Service or the trade unions. I take the point made by the noble Lord, Lord Clinton-Davis, that numerous people are not in trade unions, but a considerable number of people are still covered. I seem to recall USDAW announcing earlier this week a very successful action that it had taken on behalf of its members in branches of Woolworths. It had managed to get claims. I am sure the noble Lord would agree that there is still an important and valid role for trade unions.
ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. In some cases, an employer may indeed be willing to engage in civil mediation. There is also help available from the pay and work rights helpline and the redundancy helpline, and the tribunal’s public inquiry line can provide factual information although, I accept, not legal advice. Again, in some cases, voluntary organisations or charities may be able to offer assistance.
A number of noble Lords mentioned other issues that are not immediately pertinent to the debate on legal aid. DBIS is still consulting, although it might not have even got to consultation yet. I will certainly make it my business to ensure that—
Lord Clinton-Davis
Many of the people we are talking about are inarticulate. In my view, they have to have some sort of professional advice, but advice on the spot that is legally articulated on their behalf. No one else will do it. What does the Minister say to that?
Lord Wallace of Tankerness
There is a distinction between advice that is preparatory to a tribunal and advice in representation. I will check this but at the moment what has been sought is in many respects advice preparatory to tribunal. The number of cases where there is actual representation is very small.
Lord Clinton-Davis
Will merely advising people and preparation be enough? Is it not vital that those in this position should be able to put their case to the tribunal? They cannot always do that by themselves, can they? They need professional advice.
Lord Wallace of Tankerness
My Lords, in many cases professional advice by representation is not actually available. I have already said that I do not for a moment deny that the advice that people get in the preparation of a case is valuable—of course it is—but we get back to the issue of looking at the competing priorities for funding from a limited pot. We have said that cases involving life, liberty and homelessness are more important priorities. We are looking, too, at circumstances in which the tribunal is itself intended to be a forum in which people could much more readily access such things informally, without the need for, or recourse to, lawyers. When I was a law student, the idea was still alive and fresh. That difficult choice was made against a background where there are other sources of advice available—I shall not list them again—and in the context of a tribunal that is intended to facilitate those who do not have representation. I do not shy away from it being a difficult choice, but it was made against other competing priorities.
I was about to take the point that the noble Lord, Lord Howarth, and the noble Baroness, Lady Turner, made. We have mentioned other proposals that have been on the airwaves. A different department is responsible, but I will ensure that these concerns are drawn to the attentions of BIS, and will respond to the more specific points when it is possible to draw them to the attention of the department whose responsibility they are. I think that I am right in saying that in some cases the consultation has not been completed.
Lord Bach
My Lords, I am very grateful to all noble Lords who have taken part in what I was going to describe as a short debate but is now a medium-sized one. None the less, it has been a passionate debate, with many strong views being expressed. I am grateful, too, to the Minister for answering the sometimes difficult questions that were rightly posed to him. I am particularly glad to thank the noble and learned Lord for acting as a recruiting sergeant for trade unions. Speaking as a member of a trade union, I think that that is a splendid thing to do from the government Front Bench. He is quite right; this is a strong argument for people to join trade unions and get the help that that brings. I know he was making a serious point.
On this occasion, the Government and even the noble and learned Lord are being rather naive about tribunals. It seems that the best justification for what the Government are doing is that because tribunals were designed to be informal, they are therefore informal and it is fine for individuals to represent themselves in person on a regular basis, even when the other side is represented by a QC or a lawyer of any kind. There is nothing that the tribunal can do to make it fair if that is the position. One thing that the state has done to make it fairer is to give individuals who do not have the benefit of trade union membership or any other resource—who do not have the money to pay for lawyers—some legal advice and, in occasional cases, representation at a tribunal, just to equalise the situation a little. I have no doubt that employment tribunal judges and the lay members who sit on tribunals welcome the fact that individuals have had advice or are, on occasions, represented. That makes their task that much easier than it is when there is complete inequality of arms.
I ask the Government why they are making a system that works pretty well at the moment more unfair and more likely to lead to injustice—this is true about a whole range of these issues but we are talking here about employment tribunals—for savings of some £4 million a year. That is if there will be savings, but I will come to that. Many arguments have been put forward against this change from all sides of the Committee this afternoon.
The question that I want to ask is: given that the only possible reason for doing this is to save some public money—we know, of course, that public money must be saved—is the Minister really satisfied that this will save any money at all? The obvious consequence of there being no legal aid is that bad cases will be taken forward by individuals, which will clog up the tribunal and slow it down because the individual will not have had advice or representation. Good cases will not be pursued, which is an attack on justice, or, if they are pursued, will take much longer to be heard because of the large number of bad cases that suddenly find themselves before the tribunal.
Lord Clinton-Davis
Take, for example, a person who feels aggrieved and is advised by a lawyer that he has no case or no chance of winning but still feels aggrieved. He therefore pursues his argument to the bitter end. That will take up much more time and money. Am I right?
Lord Bach
As usual, my noble friend is right. The point is that many individuals who feel aggrieved, when they are advised—whether by a trade union lawyer or a private lawyer—that they do not have a case, will take that advice and not clog up the system in the manner that I describe. One suspects that there will be no savings at all for the poor employment tribunal itself. It will be caught with hopeless cases that will get nowhere, and claimants with good cases will have to wait a very long time to pursue their cases, if they even pursue them at all. It all seems totally unnecessary when the system that we have in England and Wales works well. I hope that I am not putting it too high when I say that I believe it is the envy of the world as far as employment law is concerned.
I hope that the Government will reconsider this aspect of the Bill between now and Report. I am minded to bring this matter back at Report for decision. However, for the moment, I beg leave to withdraw the amendment.
Lord Goldsmith
My Lords, I want to underline and strongly support one point made by my noble friend Lord Beecham, and referred to by the noble Baroness, Lady Howe, and that is the impact of these changes on the organisations that are providing just the alternative support that the Minister referred to. The Bill is about taking money away not just from lawyers but from organisations that are supporting people in an important time of need.
I speak with some knowledge of this as I have had a long history in the pro bono movement. I declare an interest as chairman of the Access to Justice Foundation. One of the things that we do is to distribute regrettably small sums of money, because that is all we have, to organisations that support consumers and provide free legal advice and representation. Those small sums are going a long way towards helping people, but I know how much more is needed. I have seen organisations going to the wall, unable to continue because they depend and to some extent scrape by on a little bit of legal aid.
I should very much like to hear from the Minister just how he and the Government believe that the alternative services to which he referred can continue in the light of the cuts that the Bill is making in this field.
Lord Clinton-Davis
I am rather frightened that too many people are going to find themselves without any remedy. That is bound to arise in many instances. I hope that the Minister will sympathise with them because having an effective remedy is vital. I am not talking about professional advice but about being able to take something to a tribunal and being heard—and being heard equitably. It is not simply that people of this kind—we are talking about consumers at the moment—ought to feel that when they are treated shoddily their point of view will be heard. I am afraid that that is unlikely to be the case and they will be sort of disfranchised. People who are inarticulate and disfranchised can resort to rather unhelpful remedies.
Lord Wallace of Tankerness
My Lords, the effect of the amendment moved by the noble Lord, Lord Beecham, would be to make civil legal services available for consumer matters. There is a degree of familiarity about the pattern of these debates. I do not think that I am speaking out of turn in saying that the previous Administration and the Labour Party went into the last election with an understanding that the legal aid system would have to be reformed. What I find difficult in listening to the debates—and I hope that I am not offending anyone—is the sentiment, “Lord make me chaste, but not just yet”. We must reform legal aid, but when examples are presented people say, “We don’t want to reform that part of it”.
Baroness Mallalieu
I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?
Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.
First, I would have to discover the relevant forms—whatever they are—which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities—the reports of the earlier cases that will be relied on—will have to be compiled and given to the court and the other side as well.
How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An “exceptional case” must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,
“compelling reason why the proper conduct of the appeal requires the provision of civil legal”,
aid, brings in just that factor that is currently missing.
If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.
Lord Clinton-Davis
I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.
The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,
“a complex issue of law … wider public interest … some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services”.
I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.
Lord Bach
My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person—and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clinton-Davis Excerpts(12 years, 10 months ago)
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Lord Macdonald of River Glaven
My Lords, I wish to speak to Amendments 43 and 44, to which I have attached my name, and to a part of the group which focuses on the question of domestic violence and the way in which the Bill approaches domestic violence.
The history of the justice system and domestic violence is not a very happy one. For many years, crimes within the home were hardly regarded as the business of the state; they were, in the rather grim phrase, “domestics”—issues to be sorted out as best as they could be between the parties. Of course, the problem was that the parties were very rarely equal. Children, who are often the most damaged victims, are the least equal of all. In all the years that I was a prosecutor, I saw the effects and consequences of that injustice. At its most brutal, I dealt with a startling number of women who had been murdered by their partners, and who had repeatedly been victims of persistent and escalating assault. In too many cases, those assaults had gone completely unpunished and undetected and they were allowed to escalate into killing. It would be difficult to imagine a worse failure of law enforcement policy.
When I was the DPP, the prosecution service and the police, notably aided and encouraged by the noble and learned Baroness, Lady Scotland, when she was a distinguished Attorney-General, spent a great deal of time on this issue, as she knows. We did research, we spoke to victims and to experts, and we educated ourselves, prosecutors and police officers. The most important lesson that we learnt was that the signals sent out by victims of domestic violence can be confused and difficult to read. Sometimes they have to be decoded and understanding that was the key to all the reforms that we undertook. Of course, people in these situations do not send out confusing signals or sometimes behave in ways that are, for us, counterintuitive because they are necessarily lying, but the complex human relationships that are in play do not always allow for a rational train of evidence, so the police and we as prosecutors had to think differently and imaginatively about this category of crime. The Government also have to do that.
At the most basic level, a woman who has been beaten up does not always come forward to make an official complaint, but the absence of a complaint is not evidence that a crime has not occurred. The British Crime Survey tells us that up to 25 per cent of women have experienced domestic violence, but the numbers coming forward are far below that: indeed, on the Bar Council's figures from another survey, only 16 per cent of victims of domestic violence come forward.
The truth is that an abused woman will not always report her assailant to the police. Often, she will not. If she does, she will not always support a prosecution. Often she will not; often she will return home to face more violence. No doubt sometimes she has children who want their father. Sometimes he is the breadwinner and she fears destitution without him. Sometimes she may simply continue to love him in some way that draws her back. As prosecutors, we learnt not to take the behaviour of victims of domestic abuse at face value. We learnt that we had to get beyond those responses if we were to get the assailant. That was the key: to get beyond the responses. The result was that prosecutions of domestic abusers rose dramatically, as did the rates of conviction. This was painstaking work and it would be a very great shame to see any of it undone.
Which of the lessons that we learnt have the drafters of the Bill learnt? The answer is: not enough of them. Frankly, in their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago. It is a matter of great regret that a Bill presented by the coalition Government of which my party is a member appears to step backwards in expecting victims of domestic violence to conform to a stereotype of conduct, so that they will not be believed, their gateway will be shut and they will not get legal aid. This risks condemning many victims of domestic violence to a future with little or no legal succour. It is a policy with which the Government should not be associated.
In essence, the Government have done the right thing in Schedule 1 by retaining legal aid in private family law cases where domestic violence is present, but have done the wrong thing by requiring categories of evidence to support the existence of domestic violence that are very commonly absent, such as a criminal conviction, a finding of court and so on. So often, the victims of this sort of conduct seek advice and help from sources other than the authorities.
Lord Clinton-Davis
Has the noble Lord made representations to this effect? If so, what has been the reply?
Lord Macdonald of River Glaven
I am certain that the points that I and other noble Lords made were carefully considered by the Government, who I hope will continue to consider the points. My point was that frequently victims of domestic violence seek support other than from the authorities, for obvious reasons; they seek it from doctors, support organisations, social services and the like. Material from these sources should be acceptable as evidence for the purposes of the legal aid gateway.
We can dress up the Government’s present scheme in any way we like, but the reality is that the legal aid budget will reduce as a direct result of the reluctance of many victims of intimate domestic violence to expose themselves and their children to the threat of more abuse by identifying and reporting their assailant to the authorities. That is unacceptable. Of course, we all hope that victims will come forward and seek protection for themselves and their children. It is important to give them every encouragement to do so. However, often they will not, and if they do not they should not be denied legal aid for that reason.
The Government's justification for the Bill's approach is, if anything, less attractive than its substance: namely, that we need a conviction or some other officially reported evidence of abuse in case women are tempted to make up allegations of assault in order to get legal aid. This is a rather depressing reinterpretation of the old stereotype of the woman who cries rape. Of course, women very occasionally invent allegations of rape but, in my experience both as a defence counsel and as chief prosecutor, these cases are exceedingly rare and very heavily outnumbered by cases in which the woman has been attacked. A vast and overwhelming number of women do not invent the attacks that have been visited on them. Domestic abuse is real and far too widespread, as I know the Secretary of State and the Minister realise and understand.
It is particularly difficult to understand why the definition of domestic violence in this Bill is different from and, on any analysis, narrower than the definition used by ACPO and the Crown Prosecution Service in detecting and prosecuting these crimes. I hope this is an accident. If it is, let the error be rectified at once. If it is not, let the Government think again. What possible justification can there be for this Bill to contain a definition of domestic violence that offers less protection to the victims of domestic violence than the definition used successfully day in and day out by our law enforcement agencies? If that is the reality, as I believe it is, this definition has no place in this Bill.
I accept that the legal aid budget must reduce. It is for this reason that I am able to support, as the Minister knows, many of the reforms proposed by the Government. Indeed, I have no problem at all with some of the more controversial proposals, including competitive tendering for criminal legal aid, although this does not make me very popular with many of my professional colleagues, but I have a major problem—
Lord Beecham
My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.
I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.
I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.
We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of the Bill, and in this context the loss of liberty must certainly be included. I trust that that is acceptable to the Minister. Frankly, it would be absurd if that were not the case. There is a question in my mind, and perhaps those of other noble Lords, about the precise meaning of “deliberate” in this context. Does that refer to the act of omission or commission—the substantive act—or to the fact that the consequences which are complained of were intended all along or ignored in a negligent way? It seems to me and to other noble Lords who have spoken that this amendment deals very adequately with those matters, and should be accepted.
The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what “deliberate” or “harm” mean. It expresses concern that the ministry will seek to interpret “deliberate” as more than unlawful, and “harm” as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.
However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained—for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.
Amendment 90ZZA refers to a rather different set of circumstances—in fact, an entirely different set of circumstances—that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert “mental or psychological” harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,
“Advocacy in the proceedings in the Court of Protection”.
At the moment, legal aid would be limited to,
“a person’s right to life … a person’s liberty or physical safety”,
and some other matters. However, physical safety is not by any means the be-all and end-all, and there are clearly cases where people might be subjected to psychological or emotional harm and may require legal assistance. One can think of people with learning disabilities being abused or taunted, generally suffering as a result of the actions of others, and needing the protection of the Court of Protection—and therefore needing legal aid to pursue their remedy and obtain protection. It is fair to say that it is unlikely that there would be many cases of this kind, and therefore, as has been suggested in respect of other amendments that we have discussed, the cost would be likely to be limited. However, the Court of Protection can deal with such matters by granted orders and injunctions to protect people from harm that may amount to physical or emotional harm, in addition to the ordinary rights that would be available regarding legal aid.
Lord Clinton-Davis
I am concerned about the position of the Official Solicitor. Would he not be inhibited from acting at all in certain instances? Therefore, the vulnerable person concerned would be exposed to increase vulnerability.
Lord Beecham
That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.
I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.
Lord Wallace of Tankerness
My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—
Lord Clinton-Davis
Did the Minister really say that in no circumstances would legal aid be available where the infringement immediately appeared to be minor? Does he not recognise that lawyers often come across cases that appear to be minor but later become rather more serious? What remedy is available in such an instance? Is the Minister really arguing that, once it is decreed that a situation is minimal, there is no possible remedy?
Lord Wallace of Tankerness
It is not that there is no possible remedy; it is a question of whether legal aid would be available—whether it is within scope. I do not shy away from the fact that these are difficult judgments to make, but the resources are not unlimited. The noble Lord, Lord Clinton-Davis, refers to a minimal infringement. If the resources are limited, it is very difficult to see why a minimal infringement, which may be one of error, should attract the same level of resources as a case where there has clearly been a misuse or abuse of power on the part of a public authority.
Lord Clinton-Davis
I am talking about the solicitor who originally investigates a case being not very competent. He concludes that the case is minimal but he might be wrong. Why should legal aid not be available later?
Lord Wallace of Tankerness
I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in many of the cases that we are talking about where legal aid might not be available, conditional fee agreements might provide a viable alternative where there is clearly merit in the case but it would not qualify under the definition here.
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
Lord Clinton-Davis Excerpts(13 years, 5 months ago)
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Lord Taverne
The noble Lord has made a point which on the face of it is plausible. It very much ties up with the argument put by the Front Bench that the case of transfer of power in Europe is different because there is a special problem about British trust in the European Union, which can be restored only by giving people a say. Then by some extraordinary leap of logic, it is suggested that they should have a say on issues such as appointments to the European Court of Justice or the protocol on the excessive deficit procedure, because that would apparently restore trust—because in the pubs they talk of nothing else.
As the noble Lord, Lord Liddle, revealed in Monday's debate, the European Union is not the only body that has lost people's trust. Parliament is distrusted even more than Brussels—by 66 per cent, he revealed, as compared with only 64 per cent in the case of Brussels. The Government are mistrusted by 67 per cent. What is the answer to this mistrust of Parliament and Government? According to the Government's logic, the answer is more and more referendums—more power to the people. Who are the most mistrusted of all by miles, by 82 per cent? The political parties are. What should they do? Obviously, the answer is to promise more and more referendums in their election manifestos because people would have more say and, as Rousseau preached, the will of the people must prevail. I am amazed that speech after speech from Conservative supporters of the Bill echoed the cry of Rousseau; the inspiration of Robespierre and the Committee of Public Safety. They abandoned the philosophy of John Locke, one of the architects of parliamentary government, who also inspired the founders of the American constitution—and, of course, goodbye Edmund Burke.
The noble Lord, Lord Howell, and others have told us that we will not have referendums in this Parliament. If there is a referendum in a future Parliament it will not be a separate referendum on each individual item in the list of the 56 but on a whole batch of changes together. We will be given a choice of saying yes or no, in a single vote, to a licorice allsorts collection, including perhaps the decision on a new Advocate-General, on new tasks relating to prudential supervision by the European Central Bank, on a multiannual financial framework and so forth, as if any such choice of one yes or no vote to cover the lot could possibly make any sense.
The noble Lord, Lord Howell, said that it will be no different from voting for party manifestos in elections with their long list of promises. Personally, I do not subscribe to the general belief in the sanctity of the manifesto mandate. Parties should make fewer promises and grade their commitments at election, with some as aspirations and others as commitments that they can safely undertake irrespective of changed conditions. Manifestos are too detailed and they do not allow for events. As Macmillan said, “Events, dear boy, events”, affect you.
At least manifestos relate to issues with which voters are familiar. Nothing could be more remote from their experience of everyday concerns than most of the items in the list of 56 possible referendums in the Bill. Essentially, the vote at elections is for something that people understand: choosing a new Government. The analogy of the noble Lord, Lord Howell, does not stand up.
The Bill is highly dangerous for two reasons. First, as the noble Lord, Lord Kerr, and others with great experience of European negotiations have argued, it may lead to immobility and sclerosis on many occasions when what we need above all is flexibility. Just as serious—I would argue even more so—are the crucial constitutional issues in the Bill that undermine the system of parliamentary government and are a major move towards government by plebiscite, California-style.
Some of the Bill’s supporters seem positively to welcome this. With others, it seems that the hostility of Eurosceptics to Brussels is so strong that it outweighs concern for parliamentary government, which has served this country so well. I hope that some of them will recognise that our system of parliamentary government matters even more.
Lord Taverne
Presumably, not everything will be put to a referendum. As has been said, a future Parliament can repeal the Bill as an Act, but once an Act that gives rights to people to be consulted in a referendum has become entrenched, it is much more difficult to take those rights away than not to have provided the plebiscite in the first place. I echo the question of the noble Lord, Lord Kerr: is there any case in which a Government have said in a Bill, “We are not legislating for this Parliament. The referendum lock will never be triggered in this Parliament. We are legislating not to restrict our own actions but those of a future Parliament”? We are going to restrict the decisions which they might wish to take. I believe that that in itself is, as Professor Vernon Bogdanor, an eminent constitutional expert, has declared, fundamentally unconstitutional.
I add to those who are worried about the coalition agreement that nothing in that is infringed by the amendment. The amendment does not restrict this Parliament, to which the coalition agreement obtains. The coalition agreement is not for future Parliaments. Who knows what the coalition agreement for the next Parliament will be? Who knows who will win the election or who the coalition partners might be? As the amendment says, very well, let the Government have this Bill—probably mainly to appease their Eurosceptics—but for this Parliament only.
Privacy Injunctions
Lord Clinton-Davis Excerpts(13 years, 6 months ago)
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Lord Wallace of Tankerness
My Lords, my noble friend is right to quote at length Article 10. As I said earlier to the noble and learned Lord, Lord Falconer of Thoroton, these issues and the tensions between Articles 8 and 10 were considered at considerable length during the passage of the Human Rights Bill and express provision was made in Section 12 of that Act to give further guidance to the judiciary to establish that balance.
The other point that I would make, in substantially agreeing with my noble friend, is that in my experience, in politics and law, unless you have been involved in the case you usually do not know all the facts of the case. Very often that is in terms of sentencing; it is only the judge and the people involved in the case who know all the facts and on the basis of those facts come to the judgment that they make. That is a duty and that is what they do.
Lord Clinton-Davis
Would the Minister underline for the benefit of the Joint Committee that the Law Society and the Bar Council have very useful views to communicate? They are able through their membership to speak authoritatively about this matter. Many of the lawyers who are skilled in this field have a useful contribution to make.
Lord Wallace of Tankerness
I would certainly agree with the noble Lord. No doubt when the Joint Committee comes to take evidence, the professional bodies, the Law Society and Bar Council, will be bodies that it will want to seek evidence from—as well, no doubt, as from individuals who have much experience to bring to bear on these important matters.
Fixed-term Parliaments Bill
Lord Clinton-Davis Excerpts(13 years, 7 months ago)
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Lord Grocott
My Lords, the noble Lord, Lord Newton, repeated an argument that has been used on many occasions, particularly by his noble friends on the Liberal Democrat Benches, that we are somehow in a new kind of politics now, having moved from the traditional two-party system to the less traditional three-party system, and that we therefore need to change huge swathes of our constitution, including changing the voting system and perhaps changing the mechanism for moving from one Government to another, in order to accommodate a fundamental change in our political system. I put it to him, and to them, that I do not take that view; I think that the fundaments of our politics are quite similar to what they were when I came into politics 50 years ago. I put it to them at least that, should any of the opinion polls be right—and we know that we should treat them cautiously—there is a fair bit of evidence that we are moving back towards more of a two-party system, which I for one would welcome. I would be interested to know whether all those who have been saying “New politics means new constitution” will now say that they want the constitution to revert to the way that it operated previously, should there be old politics after all—that is, fundamentally a choice between people who are broadly happy with the way things are and people who want to change them, which is basically what happens in democracies in the United States, here and in many countries of Europe—rather than a yes, a no and a don’t-know as we have at the moment. I make that point simply as an aside but it is worth considering.
This part of the Bill makes an extraordinary proposition. I think that we all more or less subscribe to the cliché “If it ain’t broke, don’t fix it”, but the Government seem not only to be rejecting that idea but also to be saying that, if it is working perfectly, we had still better fix it. My argument is very simply that the no-confidence system as has operated in this country works not just very well but perfectly. We have a test case: 1979. I am very pleased to see the noble Lord, Lord McNally, on the Front Benches; he remembers 1979 as well as I do. That was a perfect example of the no-confidence system, which is not written into our constitution, with there being no clear procedural rules that Jim Callaghan had to follow, working perfectly. He lost the confidence of the House on a motion of no confidence so he went to the country. Will someone please tell me what was wrong with that? One problem that the Government got themselves into in their five days in May, among many others, was trying to write in law aspects of our constitution which are perfectly well understood and which do not need writing in law. It is a bit like trying to write down prescriptively in legislation the procedures that the monarchy needs to go through in the event of a hung Parliament. That would be extraordinarily difficult, and what the Government thought was an incredibly simple Bill is not a simple Bill at all. It has serious complications, and this is the most serious of them.
I simply put this to the Minister. In respect of the 14 days, what is the problem that he is trying to resolve? I shall put it even more simply than that and ask him what Jim Callaghan did wrong. He lost a motion of no confidence; we all know what that is. He immediately went to the country. Under this Bill, he should have entered a period of 14 days’ negotiation, without any consultation with the British public. Worse still—at least from my perspective; nobody could accuse me of self-interest because I have mentioned to the Committee before that his decision resulted in me becoming unemployed—
Lord Clinton-Davis
Jim Callaghan did not immediately go to the country. There was a gap of some six weeks.
Lord Grocott
He immediately called the general election. My noble friend is quite right to correct me, but it amounts to the same thing. My point is that there was no negotiation. He announced the general election immediately, and the public and the parties knew where they were.
Unless the noble and learned Lord, Lord Wallace, can explain it to me, there is a double fault in the Government's position. Am I right in assuming, first, that the Government think that it was wrong for Jim Callaghan to go to the country when he did; and, secondly, according to other parts of the Bill, that the Government should have gone on for another six months until October 1974 without a majority to complete the five-year fixed-term period? That builds absurd rigidity into the system. I cannot see what they are trying to deal with. If the noble and learned Lord cannot answer those two specific questions about what Jim Callaghan did wrong, he ought to remove the provision.
I agree with my noble friend's amendment. To distil it, it simply says, “If a Government lose a motion of no confidence, there shall be a general election”. I would love it if someone would follow me to say, “It is a risky, false proposition that if a Government lose a motion of no confidence, they should go to the country”. Why fiddle about with it? What on earth are the Government doing? Why do they not save us all a lot of time and energy and just withdraw the provision?
Parliamentary Voting System and Constituencies Bill
Lord Clinton-Davis Excerpts(13 years, 9 months ago)
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Lord Clinton-Davis
Will the commission be able to extend the period of consultation where due notice is given? I am thinking of illness or other good reasons interceding.
Lord Wallace of Tankerness
My Lords, in order to give the Boundary Commissions a clear direction on this, we have indicated that there will be a maximum of two days. I do not think that anything would prevent a postponement of two days. We are giving the commissions a degree of flexibility, but the period will be a maximum of two days to make it clear that the hearings cannot go on and on. They are intended to be public engagement, not lengthy inquiry hearings.
In response also to the point made by the noble Lord, Lord Lipsey, it is open to the commissions to set clear procedures for the hearings to ensure consistency. However, the chair will be able to ensure that the procedure for the hearings can adapt to local or unexpected circumstances. This balance of discretion for the commissions and the clear powers for the chair set out in legislation makes the procedures robust against judicial review.
Let us not forget that the Boundary Commissions are each chaired by a High Court judge—or, rather, they are chaired by the Speaker, but the deputy chairs will be High Court judges or their equivalent. I have no doubt whatever that sensitivity to due process will be paramount among their concerns. There has been no suggestion throughout our long debates that the Boundary Commissions have been anything other than scrupulously independent and committed to fairness in their deliberations. They are guarantees of the process being fair. However, let me be clear what these amendments envisage. It is not a return to adversarial inquiries dominated by legal argument. That would be to invent what we know, from experience, does not work. It is new; it is a culture change; and we believe it is a better concept—an open hearing, neutrally and fairly chaired, at which the people can have their say. It is not a substitute for the deliberations of the Boundary Commissions, but another means for people to tell them what they think.
We will no doubt hear arguments about the importance or otherwise of legal professionals being involved in chairing hearings. The commissions will have absolute discretion to appoint individuals who may or may not be legally qualified, and we have tabled an amendment to broaden the purposes for which assistant commissioners may be engaged. If the commissions consider that there is merit in using a suitably legally qualified person to chair the hearings—and we recognise that a legal skill set may well be advantageous—it is open to them to do so. However, if there are other individuals, such as senior public servants or commission employees, who are equally able to chair these proceedings that are designed to engage the public, there is no way in which they should be disqualified from doing so—indeed, they should be allowed to do so.
It is worth considering that the Parliamentary Constituencies Act 1986 makes no provision that the existing inquiries must be chaired by a legally qualified person, or indeed be involved in any of the elaborate processes that have grown up around these inquiries. What that legislation fails to do—a failing that our proposals address—is to make the purpose of a hearing sufficiently clear. The result is that the commissions are exposed and inquiries are no longer about people having their say but about exhaustive legal arguments designed to avoid a judicial review.
I expect that we will hear also that an oral stage requires a chair who is independent from the commissions, and who must produce a lengthy deliberative report. The Government do not accept this premise. The commissions themselves are independent, so there is no need for further separation between a commission and the arguments being put forward. The representations made at the hearings will be taken into consideration by the commissions—the amendment requires them to do it—and it will be for them to consider how best to do this. Weighing the representations made in writing, and those put in person at hearings, against all the other factors in the legislation, and against the proposals made across the regions, is the point of having a Boundary Commission. We do not require a further intermediate step.
We propose something that is culturally different from what has gone before. I note the amendments to the amendment that have been tabled, and I am grateful for the dialogue that I have had with the noble and learned Baroness, Lady Scotland. However, at the end of the day it boils down to a difference in culture and approach. Several amendments state: “delete ‘hearing’, insert ‘inquiry’”. That is at the heart of what this is about.
Parliamentary Voting System and Constituencies Bill
Lord Clinton-Davis Excerpts(13 years, 10 months ago)
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Lord Mackay of Clashfern
My Lords, it is with considerable difficulty that I find myself addressing this position which, as far as I am concerned, has never happened before. We have come to this position as a result of a government Bill which deals with very important matters—I am the first to concede that—which require discussion, and we have had a good deal of discussion. Yesterday, for example, there was a concise and effective debate on the amendments proposed by the opposition Front Bench. My noble and learned friend Lord Wallace of Tankerness explained that he could take the matter away for consideration but no undertaking could be given. That was what ought to have happened and the response by the noble and learned Lord, Lord Wallace, was warmly accepted by the noble and learned Lord, Lord Falconer of Thoroton. I see no reason why we should not be able to proceed in this way.
The other day the noble Lord, Lord Young of Norwood, said he had taken a Bill on the digital economy through Parliament. It was a very interesting Bill. I took part in the early more general clauses but once it became technical, it was beyond me, so I was not able to assist and had to desist from taking part. But there were 700 amendments. If these amendments had all taken the time that was taken by the first two or three amendments in this week’s Committee, he would certainly not have got his Bill through that Parliament. I am all in favour of scrutiny and I value the right we have here to raise every amendment for discussion and get a government answer to it. That is extremely valuable and I have explained it often in answer to people who ask what the function of the House of Lords is in relation to legislation. I am able to say that anyone who has a reasonable point and can get a Peer to see it as a reasonable point has an opportunity to get an answer from the Government on that particular point. It may not always be a satisfactory answer or the answer that one wants, but at least we have the right to get an answer from the Government on every point that is made.
The total number of amendments on the Marshalled List for this Bill is quite large and I would think that quite a number of them have substantial points. I have listened with care to a substantial proportion of the discussion in this Committee and I have been interested in the points made from the opposition Benches, most by people of considerable experience. I have paid particular attention to the points made by the noble Lord, Lord Wills, in relation to the possibility of improving the electoral register. However, as the time has gone on and the same amendment is still being debated, my interest has slightly waned as a result of the extraordinary amount of repetition. It is not for me to judge always, but I have a feeling that not every remark is equally relevant to the point of the amendment. Indeed, my noble friend—I think I can call him that as an exception—Lord Foulkes of Cumnock gave a very interesting speech the other day but he never mentioned the amendment that was being dealt with. I do not believe in making many interventions on these amendments because it just makes matters worse, but on this particular occasion I ventured to intervene to ask him whether he was for or against the amendment. His answer, typically generous, was, “Well, I haven’t made my mind up yet”, and he expected that I would not make my mind up, either, until I had heard the whole of the discussion.
I make no apportionment of blame as to where this has happened but there has crept into the debate an extension of discussion beyond what is reasonable if we are going to get through this Committee stage in anything like a reasonable time. For example, one of the amendments took something like three and a half hours. If you take the total number of amendments on this Marshalled List and multiply it by three and a half hours, we will be using most of this extended parliamentary Session for this Committee. Whatever one thinks about the merits of the Bill, that is really quite excessive in terms of discussion. I feel that we have got to a stage where we have lost the complete adherence to relevance and succinctness which are the advantages of this House’s procedure. The noble Lord, Lord McNally, made some reference to this the other day and was regarded as having threatened people, which I certainly do not think he did, but he mentioned the point that in the other place this had been lost. The reason we have had it for all the time that I know of, and I hope that it will continue for a very long time to come, is that we have exercised self-restraint and discipline in relation to the total number of amendments that are on the Marshalled List with a view to succeeding that the points are understood. When I have listened here, I have understood very well and quite quickly most of the points that are made from the opposition Benches, but by the time they are repeated five or six times, one begins to feel, possibly, that they have lost their impact. I am afraid that is, at least to some extent, what has been happening in the discussion.
Not everyone has the same level of patience but we have to exercise a certain amount of patience with one another. I greatly regret that we have come to the position where this closure Motion has happened on two occasions.
Lord Clinton-Davis
I have a tremendous regard for the noble and learned Lord and the advice that he proffers, but is it not essential in pretty well every Bill that there should be some discussion between the opposition Front Bench and the Government? He has not referred to that.
Lord Mackay of Clashfern
I am not a member of the usual channels and I never have been, unlike my good friend the noble Lord, Lord Graham of Edmonton, who came from Tyne to Thames via the usual channels. However, I feel that we have come to a stage at which we need to reconsider. I hope that there will be no further Motions for closure. I also hope that all of us, me included, will conduct ourselves in a practical way and make points that we believe will be listened to. I believe, as the noble Lord, Lord Bach, was kind enough to say, that my noble and learned friend Lord Wallace of Tankerness has always conducted himself with complete propriety, anxious to reach an understanding of the points made from the Opposition and to do his best to answer them.
I understand the Motion moved by the noble Lord, Lord Bach, and the proper course for us to take now might be to have a very short Adjournment so that we can consider the position. I believe that there have been negotiations through the usual channels—I do not know exactly to what effect. I hope they may continue, because it has always been the way to work. The noble and learned Lord, Lord Falconer, suggested on Monday as a condition of negotiation that the Bill should be split. I understand perfectly the very great difficulty with that, and I do not think that the condition will necessarily be met, but other things could happen. I suggest that the House resume for a short Adjournment and that we resume Committee in a spirit of real co-operation—I hope to speak on the next group of amendments, I have to say—whereby we will be able to have some concessions from Her Majesty's Government, at least to the extent of considering amendments, which should be the usual method in Committee.
Parliamentary Voting System and Constituencies Bill
Lord Clinton-Davis Excerpts(13 years, 10 months ago)
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Lord Wallace of Tankerness
If the House feels that that would be helpful, I certainly am willing to do so. This amendment, which, as I think I said, was moved with great thoroughness by the noble and learned Lord, Lord Falconer, and spoken to by noble Lords on all sides of the House, would, as we have indicated, provide that constituencies would usually be within the range of 95 per cent to 105 per cent of the electoral quota unless the Boundary Commission considers that there are overriding reasons why that should not be the case, in which case the Boundary Commission would have the discretion to propose constituencies that vary by up to 10 per cent of the electoral quota. I understand that the intention is to allow for equality of votes in the majority of seats. Noble Lords on all sides of the House have indicated the importance of the principle of equality of votes and that of one vote one value and seek a greater flexibility than exists at present to take account of communities’ geographical ties.
We could have taken an absolutely rigid stance and divided the total electorate by the relevant number and not allowed for any flexibility whatever. However, our proposed range of 10 per cent—5 per cent either way with a total flexibility of 10 per cent—offers flexibility. Our concern about going wider than that, or giving the Boundary Commission the opportunity to go wider than that, is that it would open the way for the kind of inequalities in seat sizes which exist at present—I think the noble Lord, Lord Lipsey, indicated that there was too great an inequality at present—albeit that would be limited by the terms of the noble and learned Lord’s amendment if it were accepted. Nevertheless, such a step would still permit too great an inequality by having a band of up to 20 per cent.
It is worth reminding the House that the current legislation states that the electorate of any constituency shall be as near the electoral quota as is practicable. That might be thought in some cases to be a more stringent target than the range that is being put forward under the Bill, where a variation of 5 per cent either way is allowed. Under the existing rules for the Boundary Commission that requirement is balanced against all the other rules and factors. However, under the measure that is proposed, equality and fairness in the weight of the vote, which are enshrined in Rule 5 of the present rules, would end up being simply one consideration among many. Variations start to emerge when the Boundary Commission recommendations are published and subsequently debated. That is not just the view of the Government but the view of independent academics who have studied the process and who have stated that in effect the public consultation process is very largely an exercise in allowing the political parties to seek influence over the commission’s recommendations by using a wide variety of evidence and deploying the rules concerning inconvenience and the breaking of local ties to promote their electoral cause.
I agree with the intention behind the amendment but our concern is that it would suffer the same fate as the existing rules. Like the existing rules it has at its core equity and equality of votes but we fear that it would nevertheless end up being the route by which vested interests, or other interests such as those which noble Lords in all parts of the House think are perfectly legitimate, such as those of people in communities, would override equality and fairness. I do not agree that it is an inflexible proposal. There is flexibility for constituencies to vary in size by as much as 10 per cent of the quota—5 per cent each way—and that is a considerable margin.
The British Academy’s report on the Bill noted:
“This new set of rules that the Boundary Commissions must apply is clear and consistent”,
and,
“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commissions (they have a clear hierarchy and are not contradictory)”.
My concern, and the concern of Ministers, is that the amendment before us would compromise this and open the door for numerous arguments that special circumstances apply. I believe that would make the commissions’ task far harder. Boundary reviews would become more drawn out, and the result—
Lord Clinton-Davis
If the Minister is arguing that the amendment is not quite right, would it be possible to put forward some alternative, or is he closing his mind to that possibility altogether?
Lord Clinton-Davis
My experience is not related exclusively to Hackney, where I was born and brought up. Wherever people come from, they are very proud of being involved in the borough in which they live. People in Hackney, whether they come from the West Indies, Turkey or elsewhere, are very proud of being part of the borough. Is that not a very important factor in what my noble friend is arguing?
Lord Howarth of Newport
My noble friend speaks with feeling about the area that he knows and has served so well.
I do not want to detain the House but want to complete my point on local government. That map of local government became so intolerable to tidy-minded bureaucrats in the 1960s that it was judged that it had to be reformed and redesigned. We had the Redcliffe-Maud report and the 1972 legislation that created all kinds of new entities of local government that had never corresponded to people’s sense of reality of where they lived. Many have been abolished and we have never succeeded in designing a new map of local government because you cannot impose it from on high.
Parliamentary Voting System and Constituencies Bill
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Lord Soley
When I come to the next amendment, Amendment 59, I want to focus on how we decide the size of Parliament, which I think is a critical issue—more important than the numbers. One of the strands running through the debate is the question, “Why 600?”. The Government have not answered that, although they have a duty to do so.
I start from a position similar to that of my noble friend Lord Wills. I have argued before that there is a case for reducing the size of the House of Commons. The noble Lord, Lord Maples, expressed a similar view. Although I do not agree with all that the noble Lord said, there is a case for it. I seem to remember the noble Lord, Lord Baker, arguing the same thing when we were both in the House of Commons. No doubt he will correct me at some stage if I am wrong, as I may be on this, but I think that he argued at the time that the size ought to be agreed by all parties concerned. That is one of the important principles that we will come to.
The issue of the figure of 600 puzzled me, and I began to look at the background to this. The issue is not new; there has been a debate about the size of Parliament for years, as people have mentioned, but it became more intense in the early part of this century. One of the people who put it in perspective was the Conservative MP, Andrew Tyrie, who in 2004 wrote the Conservative Mainstream document called Pruning the Politicians. After the expenses scandal the phrase became “culling the politicians”, which says a lot about the strength of feeling on the issue. It bubbled away along the lines of the arguments in that document. In an article in the Independent in March 2008, Nick Clegg, the Deputy Prime Minister, argued that we should cut the figure by 150.
Andrew Tyrie’s document is well argued. I do not agree with a lot of the statistics in it, where I think he has left things out about the nature of how other countries represent people within their borders, but he makes a good case for reducing the size of Parliament. However, he does two things that are very important, and I hope we will cover them more fully in the following debate on my Amendment 59. First, while he does not say that there should be all-party agreement, he says that the changes should be agreed with the Labour Party; I would change that to “agreed with all parties”. Secondly, he says that if you reduce the size of Parliament, you must reduce the size of the payroll vote as well. That is very important but is not dealt with in the Bill.
My problem with the numbers issue is that, whatever number you choose, whether it is 600, 650, 550 or whatever, it is like pulling on a loose cord on a jumper—if you pull too hard, you suddenly find that you are wearing only the sleeves. The problem is that the number in your Parliament affects a whole range of other things in your constitution. That is why this issue is so important and is a constitutional matter, and it is why I would have liked the Government to have accepted the amendment of my noble friend Lord Wills, which was drawn up by someone who had the experience and knowledge of Government to do just that.
Lord Clinton-Davis
My objection to the present proposal is the evidence that the Government are relying on for the figure of 600; indeed, some people are suggesting a figure in excess of that. Should that not be tested by evidence? Is there not a clear case for an inquiry into this issue?
Lord Soley
I think that my noble friend is anticipating the debate on the next amendment, which stands in my name. A lot of the debate within the Conservative Party arises from the document written by Andrew Tyrie. It is a good document and worth reading, but the interesting point for me is that he argued that the number of MPs should be reduced by 120—that is, by 20 per cent—and that that reduction should be carried out over 10 years in two five-year periods. That is where the figure of 60 comes from—it was going to be the amount of the reduction in the first five years. I forget which noble Lord intervened to question whether this was a matter for the House of Lords, but one reason why it is a matter for the Lords is that there is a clear statement in Mr Tyrie’s document that the redundant MPs, as I think they were described, could be sent to the House of Lords. Of course, when you reduce the number of MPs, you have a big fight over who inherits the constituency and what the constituency boundaries are. The suggestion was that those who did not succeed in retaining a seat should be considered for a peerage. Therefore, there is some background to this matter.
The interesting point is that that figure of 120 was quoted quite frequently. I do not know where Nick Clegg got 150 from—he seems to have plucked it out of the air. However, the thing that troubles me most, and the reason why the number is important, as well as the way in which we decide these things—a matter that we shall come to when we deal with the next amendment—is that the figure of 60, mentioned in this document and in subsequent speeches by David Cameron when he was the leader of the Opposition, relates to the advantage to the Conservative Party in terms of winning more seats. It was not put like that directly. It was said that there was unfair representation and that the Labour Party had too many seats. The other reason given was finance.
However, for the moment let us focus on the fact that Andrew Tyrie based his conclusion on the number of electors in an area. He argued that a vote in one area was not worth as much as a vote in, say, a Labour constituency because of the number of electors in the constituency. However, as has been pointed out in many previous debates on this matter, everything hinges on voter registration and the socioeconomic factor of turnout. Those things matter, but the problem is that Andrew Tyrie does not take them into account. The Committee may be pleased to know that I am not going to go into great detail about MPs’ constituency work but, as we know, there is a difference in a constituency where, regardless of who represents it, registration is much lower. In many cases, the MP will be representing people who are not on the register.
Perhaps I may refer briefly to my own experience of this matter. Very few research projects have been carried out on MPs’ constituencies. One such project was carried out on my constituency over a period of a year and it threw up two things that are relevant to this debate. One was that an awful lot of people would say, “I supported you”, but, when you looked at the electoral register, they were not on it. In other words, what they really meant was, “I supported Labour”, or, if it was a Conservative MP, they would have said that they supported the Conservatives. However, that did not necessarily mean that they voted, because often they were not on the register. At times, that situation applied to 50 per cent of the people who turned up at my advice surgeries.
Another thing troubled me, and this is why I think that there is a case for looking at how MPs do their job and the numbers involved. Whenever anyone came with a council problem—my noble friend Lord Martin referred to this—we asked why they had not gone to see to their elected councillor first. Almost invariably, the answer was, “I thought I’d go to the top”. In other words, people view political power as a sort of pyramid. They think, “The MP’s at the top, so I’ll go and see him”. I have always been troubled by this problem of undermining local authorities. It is one reason why I began to question whether there are too many MPs. If you take cases away from elected councillors, you are in effect saying to them, “You don’t have to do your job. I’ll do it for you”. That is undesirable. However, if you go down the road of saying that MPs should not take council cases or Scottish Assembly cases or whatever and you enhance devolved power—something that I greatly support—you then have to ask: who does the MP represent?
One reason why I have been tempted to go for a smaller number of MPs is that, particularly over the past 40-odd years, MPs have largely become councillors and social workers, and that is not desirable. At the same time, MPs have paid less attention than they might have done had they had more time to the national and international issues with which our Parliament is rightly concerned. Therefore, there is an imbalance.