Queen’s Speech

Lord Cope of Berkeley Excerpts

Tuesday 15th May 2012 Lords Chamber

Moved on Wednesday 9 May by

[Lord Cope of Berkeley]

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.

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

My Lords, it is my honour to open this, the fourth day of the debate on the gracious Speech. At the outset, I express my sadness that I shall not be faced across the Dispatch Box in future debates on Ministry of Justice business by the noble Lord, Lord Bach. I was very much helped by his advice when I took over from him at the ministry two years ago and we have had a very constructive relationship in the two years since. However, that sadness is tinged with pleasure that my new oppo will be the noble Lord, Lord Beecham. I think that we had already fully bonded during the passage of the LASPO Bill, but I very much look forward to working with him in the time ahead.

I am fully aware, and the House will understand, that noble Lords will not try to cover the waterfront in their contributions today but will prefer to concentrate on their areas of particular interest and expertise. That is fully understood and will greatly benefit the quality of the debate as a whole.

The gracious Speech makes it very clear that the Government’s number one priority is to repair the nation’s finances and to set the economy on the road to sustainable recovery. Financial stability and economic recovery are not ends in themselves. That is why our debate today offers noble Lords the opportunity to voice their views on the kind of society that we want. The gracious Speech announces a number of measures on care and support, on children and families, and on pensions which will shape how we make use of economic recovery in a fair way. In parallel with those issues, we will also cover matters which come more directly within the ministerial responsibilities of my noble friend Lord Henley at the Home Office and of myself at the Ministry of Justice.

I am particularly proud that the Defamation Bill, which started life in this House as a Private Member’s Bill initiated by my noble friend Lord Lester, is part of the gracious Speech. When it receives Royal Assent, it will join a cluster of significant reform measures on the statute book that bear his imprint. The Government, of course, committed in the coalition agreement to review our libel laws in order to protect free speech. I do not think that we are alone in thinking that the law in this area is not currently in the right place. When NGOs and reputable scientists can live in fear of being sued or when wealthy foreign citizens use British courts to silence campaigning newspapers, something is not quite right. A rebalancing is needed so that, on the one hand, freedom of speech and legitimate debate cannot be held to ransom while, on the other hand, people are able to protect their reputation against unfounded slurs.

I hope that the Bill’s measures go a long way towards striking this balance, building on the fine work of my noble friend Lord Lester. They include the creation of new statutory defences of truth, honest opinion and responsible publication on matters of public interest, and the extension of the circumstances in which the defence of privilege is available, including to peer-reviewed material in scientific and academic journals. The potential for trivial claims will be reduced by the introduction of a requirement that a statement must cause serious harm to be defamatory. The Bill will introduce a single publication rule, which will provide protection against repeated claims against the same publisher in relation to substantially the same material. It will also seek to ensure that we have an appropriate libel regime for the internet, by enabling complaints about allegedly defamatory material to be resolved directly with the author, and giving greater protection to website operators and other secondary publishers who act appropriately.

The Bill has had the benefit of extremely detailed and helpful scrutiny in draft by a Joint Committee of both Houses. I pay tribute to my noble friend Lord Mawhinney for the valuable report that his committee produced and to all those who responded to our public consultation. That has helped us to bring forward proposals which, I believe, provide reform where it is needed most and where legislation can make a real difference.

Also within my personal area of responsibility is the Trusts (Capital and Income) Bill. The Bill is being reintroduced into this House under the procedure for uncontroversial Law Commission Bills. It will simplify and modernise the law of trusts in England and Wales by abolishing antiquated rules and removing administrative burdens for charity trustees in particular. In short, it will help to keep trust law up to date for the benefit of the numerous people who are affected by trusts. I hope that this will be seen as a sign that the Government appreciate the work of the Law Commission in updating our laws and are willing to use the fast-track procedures introduced by the previous Government to progress more useful Law Commission work through Parliament.

Beyond those two specific Ministry of Justice measures, our debate today covers three main areas: helping vulnerable children by removing the barriers to them getting support; continuing with structural reform of our state pension system to ensure that people can rely on it while taxpayers can afford it; and protecting the public through reforms to security and justice, without sacrificing our freedoms.

First, we are bringing forward a children and families Bill that will help all parents and remove some of the barriers that prevent those who are more vulnerable fulfilling their potential. Under our plans, parents will be able to take more flexible leave. Mothers will be able to return to work earlier and transfer their maternity leave to help both parents share the burden of childcare. The Bill will also deliver a step change in help for our most vulnerable children. We want to reform the assessment of and provision for children and young people with special educational needs and those who are disabled. Any family whose child has special educational needs knows what a struggle it is to get adequate support. We want to give more choice and control to parents of children and young people with learning difficulties.

We also want to introduce significant reform of the adoption system to reduce endemic delay. It is right that more children are placed in stable, loving homes with less disruption to their lives and we are going to tear down the bureaucracy and red tape that gets in the way.

As well as providing more support for children and more support for parents, we also want to do more to ensure that ordinary people can look forward to security in old age. We have already taken significant steps towards that by increasing the basic state pension by £5.30, the biggest cash increase ever, and restoring the link with earnings. However, we need to do more to give those currently in work greater certainty about what level of income the state will provide in retirement, remove some of the complexity and disincentives that discourage saving and ensure that the system remains affordable.

We intend to bring forward measures during this Session that will entail a fundamental reform of state pensions. The single-tier pension will simplify the current complex and outdated pension system and will provide much clearer incentives for people to make provision for their own retirement. Reforms to the state pension age will ensure that state provision keeps pace with fast-increasing life expectancy. These changes will mean that the state pension system remains sustainable for current and future generations.

Just as we will be doing more to help vulnerable children, we will be bringing forward a draft care and support Bill to provide better support to vulnerable adults. It will modernise care and support law to ensure services are focused on people’s needs; put people in control of their care; and consolidate existing law by replacing provisions in more than a dozen Acts with one single statute. The draft Bill will be subject to pre-legislative scrutiny. I am well aware that the House is not short of experts in the area of social reform, and I look forward to their contributions during the debate.

The measures outlined in the gracious Speech are flagship reforms that will enhance the quality of life of our people. However, quality of life is best assured within a framework of public safety, security and freedom. It is these matters in the gracious Speech to which I turn. The Crime and Courts Bill will protect the public and modernise the justice system. It will do this partly by improving the way in which it is organised, and partly by opening up a closed world.

I turn first to protection. England and Wales have 43 police forces, which usually do a superb job. However, a great deal of serious and organised crime occurs on a scale, and using methods, that puts it beyond the reach of individual forces. It could be cyber-enabled fraud or child exploitation, gangs organising the drugs trade, human trafficking or economic crimes. The Government propose to establish the National Crime Agency to tackle these threats better. This is a step change in our response that will target serious organised and complex criminality, and strengthen policing at the borders. A modern, state-of-the-art agency, operating independently but accountable to the Home Secretary and through her to Parliament, is the next step in structural reform, and the national corollary of the enhanced local focus that police and crime commissioners will provide.

The Bill also adds to reforms to the criminal justice system that the Government began in our first two years. Community sentences are an important part of our penal system, but the current framework does not command public confidence. In the Bill we will legislate to ensure that community sentences punish more effectively and rehabilitate more fully. Consultation is now under way on a new top-end community sentence. Just as we have tried to make prisons more effective at reforming people, these measures seek to make community sentences more effective and more respected by offenders, victims and the public.

The Bill also looks at modernising our courts system. Proposals include establishing a single county court to speed up civil claims, and a single Family Court to end the unacceptable delays in family justice that were identified in David Norgrove’s review. It also opens up the system in a different sense. I believe that the UK has the finest judiciary in the world—one of unrivalled quality, integrity and wisdom. However, no one can rest easy when the demographic make-up of our leading judges, despite progress in recent years, remains far removed from that of modern Britain. The Bill brings forward proposals to increase the number of our judges, especially senior ones, who are women or of ethnic-minority origin, without sacrificing the key principle of selection on grounds of merit. For example, we will introduce measures to facilitate part-time working in the High Court, Court of Appeal and Supreme Court, and to allow positive action to promote diversity where two candidates are of equal merit.

Finally the Bill extends the principle of transparency by removing the legal barrier to the broadcasting of court proceedings. Initially we will allow the broadcast of advocates’ arguments and judgments in the Court of Appeal. It is small step, but one that I hope will help demystify our courts somewhat and make the principle of open justice more meaningful.

As with our social reforms, I believe that the Crime and Courts Bill has the potential to be a great reforming measure. I look forward to guiding it through the House in harness with my noble friend Lord Henley. We start the journey on 28 May with Second Reading.

Finally, I turn to two measures in the gracious Speech that have already been the subject of controversy: I refer to the proposals for closed material proceedings in the justice and security Bill and the proposals for updating the law on communications data under the draft communications data Bill. I expect these proposals to undergo scrutiny in both Houses, and not least in this House, where so much direct experience in these matters resides.

I am well aware that if economic recovery is the Government’s number one priority, defence of the realm remains, as it always is, the first responsibility of Government. In times past that has most often meant making sure our Armed Forces were equipped to undertake military tasks against a defined enemy. In the 21st century, threats come in many different forms and from many different sources. It is essential that the various arms of the state have the powers and ability to meet such threats. It is equally necessary for our justice system to be able to administer justice in a way which is fair for all.

To achieve that, we need informed and balanced debate. That is my hope and the Government’s intention. However, if the approach to these proposals is in similar vein to the editorial in Saturday’s Guardian, which talked of,

“secret justice and a licence for electronic snooping”,

which could “slowly strangle private life” and change,

“the very nature of the courtroom”,

then the kind of forensic examination of these proposals which I hope and expect Parliament to conduct will be lost in a tsunami of overhyped hysteria.

Given their responsibilities, the Government are entitled to have their case heard; for it is a recurring challenge for Government and Parliament to provide the protection that the citizen needs and expects without putting at risk the very liberties which make us a liberal democracy. It is an ongoing dilemma and it is right that whenever the Executive have proposals in these areas, they should be exposed to the most thorough parliamentary scrutiny.

The Government’s case is that, far from preventing the courts and judiciary seeing the evidence, the justice and security Bill seeks to enhance scrutiny of actions undertaken on behalf of the Government. At the moment, where an individual brings a civil claim, sometimes making serious allegations about the activities of the British state and its agencies, the intelligence services have no way of presenting their evidence in court without putting their methods and agents in danger. The consequence is that the Government fold their case, cases go unheard, rulings are not made and justice is not done. It is hardly an ideal situation for those who want to see respect for the rule of law.

What we propose means that many safeguards will apply. In particular, a judge will always take the final decision over whether closed material proceedings are needed and whether individual pieces of evidence may be heard in closed court. The interests of the individual will be represented by a special advocate, and the press will be able to report freely on the open part of the proceedings and any allegations made by claimants. At the same time, we will strengthen the independent and parliamentary bodies responsible for overseeing the security and intelligence agencies, to make them more effective and more credible.

We will extend the powers of the Intelligence and Security Committee, as well as broaden the remit of the Intelligence Services Commissioner and the Interception of Communications Commissioner. The Government hope that when Parliament comes to consider this Bill, it will weigh the evidence and find that these proposals are carefully crafted to address a challenging problem for any democratic Government with proportionality and good sense.

Let me turn to the communications data Bill. This measure too has been subject to much misleading comment. It is not about looking at what people’s e-mails say or listening in to phone calls or creating some kind of Big Brother database. At the moment, records are kept by phone companies about the calls that their customers make. This information has been used by the police and intelligence agencies for years, as a vital resource to identify where a suspect has been and when. To be clear: this is not about the content of the call, just the fact that it has been made.

What the Bill proposes is that the same data are available in the future as in the past. It is not about enhancing the power of the state or changing the balance of freedom. It is an adjustment to stay roughly where we are. However, we have heard the concerns that have been raised and want to get this right. That is why we are publishing this Bill in draft for pre-legislative scrutiny. As well as a Joint Committee to consider the draft Bill, the Home Secretary has invited the Intelligence and Security Committee to scrutinise the provisions that relate to the work of the intelligence and security agencies. This is precisely because we want a wide and full debate, and we look forward to receiving the committees’ reports.

Today’s debate covers many serious matters, and I do not envy the task of my noble friend Lord Henley in crafting his reply. I have never hidden my opinion about the need for this House to reform itself, but neither have I hidden my respect for its collective wisdom and experience. Both today and in the months ahead we will be discussing matters on which the collective wisdom and experience of this House will be called on to the full, and I look forward with genuine interest to the contributions of all who are to take part in the debate.

Protection of Freedoms Bill

Lord Cope of Berkeley Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Neill of Bladen]

My Lords, I would have wanted to vote for the noble Lord’s first amendment, but I can see that there are difficulties and that maybe more time for thought is required. It is perfectly true, as the noble Lord, Lord Lester, said, that a report has been produced that emphasises the sovereignty, as it were, of the human rights convention, which intrudes—I mean that in a good sense—into earlier legislation and the rights and the protection that are not visible there.

My concern is that the ordinary man or woman in the street does not understand the scope of the Human Rights Act and would be outraged to hear that there are 1,200 instances when officials can enter your house—your home—and certainly your business and would wonder how that could have arisen over the years. In the absence of a ministerial explanation, I would be inclined to infer that it would become a habit that if you wanted a power that might be useful one of these days for some of your officials, you stick in a power of entry. Parliament is bereft of any power either because that power is in a statutory instrument and we do not amend statutory instruments, or it is in a bit of primary legislation that goes through with that clause unattacked.

Something clearly has to happen as a result of the amendment moved by the noble Lord, Lord Marlesford, the research by the noble Lord, Lord Selsdon, which has produced the figure of 1,200, and 500 separate pieces of legislation, as I understand it, from the noble and learned Lord, Lord Scott of Foscote. My present state of mind is that I am very anxious to hear what the Minister has to say and what amelioration of the situation can be produced. It is not satisfactory at the moment and some quite sweeping amendments will be required, no doubt making due reference to the points raised by the noble Lord, Lord Lester.

[Lord Cope of Berkeley]

My Lords, I, too, have sympathy with my noble friend Lord Marlesford’s amendment in principle. At the same time, I also observe that the review to which the noble Lord, Lord Lester, referred a few moments ago is not required by statute until after this Bill is passed. It is in Clause 42 of the Bill, and Secretaries of State then have two years in which to review the 1,200 powers or however many it turns out to be. It would be helpful to your Lordships' House if my noble friend the Minister could tell us whether the review is already in progress and how many of the 1,200 powers have so far been reviewed in addition to the 15 that are due to be knocked out by Schedule 2. Clearly, the review has reached 15 of the 1,200 in a negative sense, but how many of the others have so far been reviewed?

[Baroness Hamwee]

My Lords, I am sorry not to be able to support what the noble Lord, Lord Marlesford, has described as his package. Reference has been made to individual amendments, but he rightly put them forward as a composite. I know the effort that he has applied over a long period, along with the noble Lord, Lord Selsdon, and indeed the noble and learned Lord, Lord Scott of Foscote. I have been privileged to observe him in the Merits of Statutory Instruments Committee, conducting with great assiduousness what I can only describe as a campaign against rights of entry that continue to crop up in statutory instruments on which we are asked to comment.

I wrote down “presumption” in the non-legal sense; I agree that every power of entry should require a warrant, and my noble friend has reminded us of both the common law and the Human Rights Act. I welcome what is in the Bill, and I am glad that the noble Lord, Lord Cope, referred to it, because I think we have rather tended to overlook what is proposed for our consideration.

I welcome Clauses 39 and 40. The noble and learned Lord, Lord Scott, may not be a veteran, as some of us are, of the continuing debate over “must” and “may”. I also welcome Clause 42. To pick up the terminology used by the noble Lord, Lord Marlesford, I am certainly one who would normally chase the Government—I tend to be on the rather cynical wing. However, I take the two years for the completion of the review at face value, particularly as we can assume that the reports required of Ministers—a duty under Clause 42—will include not only a conclusion but an explanation for each decision, and Parliament will be able to debate these. I note of course that the noble Lord, Lord Marlesford, is not seeking to delete these clauses.

I add one short point. I have another difficulty with the drafting of the second amendment. It would require an authority to,

“demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.

I am not entirely sure that I know what is meant by “demonstrate”, but I suspect that we could be heading down a road to judicial review, which would mean that the High Court rather than magistrates became involved in many of these instances.

The noble Lord, Lord Borrie, has mentioned environmental health officers; I think we have the Environment Agency. I say to the noble Baroness, Lady Eaton, that like her I found the examples from the Local Government Association very powerful and helpful. However, I must agree with other noble Lords that this work cannot be allowed to rest.

Northern Ireland: Police Evidence

Lord Cope of Berkeley Excerpts

Wednesday 20th October 2010 Lords Chamber

Asked By

[Lord Cope of Berkeley]

To ask Her Majesty’s Government how long it takes on average for evidence to be transferred between police in Northern Ireland and the Republic of Ireland and vice versa through the Letter of Request procedure.

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, recent requests to the Home Office took between 12 days and 202 days from receipt of request to delivery of the evidence. This is based on a very small number and I cannot say how quickly Irish counterparts forwarded the evidence to their police. Northern Ireland prosecutors may send requests directly or via the Home Office. The Public Prosecution Service for Northern Ireland does not keep statistics on how long it takes to receive evidence.

[Lord Cope of Berkeley]

My Lords, I am sure that my noble friend would agree that, although co-operation between the two police forces north and south is excellent, the legal complexities of investigating and prosecuting cross-border crime are considerable. A letter of request is only a small part of that, but it is a part for which the Whitehall Government are responsible, as opposed to the Belfast Government under devolution. Why is it necessary for London to be involved in these cases? Would it not be better if a method of short-circuiting was found so that at least this aspect of the legal complexities could be speeded up?

[Baroness Neville-Jones]

As my noble friend says, active co-operation between the police forces on the ground is very good, as I think his parliamentary committee had reason to say recently. On the involvement of the central authority—that is, the Home Office—it is normal form for letters of request to come into the central authority for the purposes of ensuring that they are properly dealt with. The central authority in London has taken considerable pains to reduce the backlog and to improve its performance, as we were aware that there were complaints; indeed, the previous Government took some measures to improve the situation. It is fair to say that the performance now by the central authority is regarded as good and the Irish authorities have so said.