Criminal Justice and Courts Bill
Lord Davies of Stamford Excerpts(10 years, 4 months ago)
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Lord Davies of Stamford (Lab)
My Lords, I hope that the noble and learned Lord, Lord Lloyd, was right when he said that he did not believe that any member of the Government had ever wished that the right of review for whole life prisoners should disappear. He may well be right, and I would be the last person to wish to challenge his generosity, but I have seen at very close quarters in the course of my political career how really fundamental legal principles can be eroded under the pressure of electoral and demagogic—I can use no other word—considerations. It is enormously important for us in the House of Lords, who are less prone and less open to those pressures than Members of the other place, to be very clear in our minds about the legal principles on which we really do wish to take our stand and which we think are foundational for our legal system.
I support this splendid amendment on the three grounds that have already been touched on in one way or another by those noble Lords who have spoken to it. One is that it undoubtedly increases the humanity, and therefore the justice, of our legal system, which, after all, has been inspired over the centuries by the Christian idea of forgiveness, as well as by other Christian concepts
It also contributes to the efficiency and efficacy of our penal system, because no penal system can really work properly unless it is committed to the concept of rehabilitation. If rehabilitation is excluded or irrelevant for certain classes of prisoner, because nothing they do and no transformation of their character or behaviour can earn them any kind of release, then there is no rehabilitation for some prisoners and rehabilitation therefore ceases to be a general principle that is observed by the penal system in relation to all its prisoners as a matter of course. That leads to a degradation of the spirit and the culture of the penal system concerned, which would be extremely undesirable.
Thirdly, I very much share the view that has already been expressed that it is very important that other penal, legal decisions about the review of prisoners should be taken by independent judicial or quasi-judicial bodies—for this purpose, I accept that the Parole Board falls into that category—and under no circumstances, for the reasons that I mentioned at the outset of my intervention, by a member of the executive branch of government, open to pressures from Back-Benchers, the Daily Mail and God knows who else.
This amendment is extremely timely and I wholeheartedly agree with the view that has already been expressed that the responsibility now lies with Parliament to clarify the law, to make it absolutely clear what we believe the law should be in this particular matter, not to leave matters to the vagaries of jurisprudence, given the considerable uncertainty that has already been created, certainly in my mind, by the Minister’s statement that it is possible to interpret “compassionate” as including all sorts of issues relating to the conduct of the prisoner as well as the prisoner’s health. We are going down a route that would lead to greater uncertainty for the law and therefore greater injustice, which would be extremely undesirable. We have the opportunity to legislate clearly in this House this afternoon and we should take it.
Lord Phillips of Worth Matravers (CB)
My Lords, I support this amendment. In Vinter, the Grand Chamber of the Strasbourg court made it plain that a whole life sentence that had no possibility of review, however long the defendant might be detained in prison, constituted inhuman treatment contrary to Article 3 of the convention. In explaining its decision, the Grand Chamber said at paragraph 112 that,
“if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence”.
That passage echoes the observations of the noble Lord, Lord Marks, which I endorse.
The Strasbourg court held that the discretionary power of the Secretary of State to release a whole life prisoner under Section 30 of the Crime (Sentences) Act 1997 did not satisfy the requirement of Article 3 because of uncertainty as to when the Minister would be required to exercise that power. In so holding, it differed from a decision of the Court of Appeal in Bieber, over which I had presided, but as the House has heard, the Criminal Division of the Court of Appeal presided over by the Lord Chief Justice has recently disagreed with the Strasbourg court on this point in the case of McLoughlin.
The Court of Appeal said this about the duty of the Secretary of State:
“First, the power of review under the section”—
that is, Section 30 of the 1997 Act—
“arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term ‘exceptional circumstances’ is of itself sufficiently certain”.
The court went on:
“Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds … Third, the term ‘compassionate grounds’ must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis … Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review”.
One suspects that the Secretary of State may not relish being required to exercise this discretion; nor is it appropriate that the discretion should be exercised by a member of the Executive, as the noble Lord, Lord Pannick, has explained. This amendment would transfer the relevant decision to the Parole Board and define the circumstances in which it would fall to be exercised, with a precision that should satisfy the Strasbourg court.
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Davies of Stamford
I am most grateful to the Minister for giving way. It is clear that the Parole Board has a serious backlog in this matter. In considering the appropriate budget for the board, have the Government been looking at this matter completely by itself in vacuo or have they been looking at it in connection with the very relevant point made just now by the noble Lord, Lord Ramsbotham, that there would be considerable savings to public funds if these prisoners were released, to the order of about £40,000 a year? Is it not the case that the interests of financial rationality and justice are aligned in this matter but that the Government are running counter to both of them?
Lord Faulks
I am very surprised that the noble Lord thinks that somehow the Ministry of Justice has failed to notice that it costs the Government a great deal of money to keep prisoners in custody. It is painfully aware of that, and of the cost. However, the ministry is also aware of its obligation for the protection of the public, and it is in balancing these issues that it comes to the very difficult decisions that it has to reach.
It is right that offenders serving indeterminate sentences—IPPs—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. There is evidence that IPP prisoners who take the opportunities presented to them to reduce their risk are beginning to achieve release in greater numbers. Since 2010 the number of IPP releases has grown, and we have seen over 400 IPP releases in 2012 and 2013. The percentage of IPP cases considered where release was ordered was 6% in the 2010-11 report, whereas in the 2012-13 report the figure was 16%.
Of course, we keep the matter under review. The amendment, as I understand it, would effectively lead to the prisoners who are within the scope of the amendment being automatically released, as it would mean that there was no discretion for the Parole Board to do other than to direct release. That is not the Government’s policy, as noble Lords are aware, and I will be unable to accept the amendment on those grounds.
I should also say that there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle. The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release IPP prisoners who had a tariff of less than two years. Section 128 is not about the duty to release indeterminate sentence prisoners but, rather, gives the Secretary of State the power to change the Parole Board’s release test by order. The amendment, however, appears to direct the Parole Board to release certain prisoners without any consideration of a test whatsoever.
The noble and learned Lord, Lord Lloyd, to whom I pay tribute, as others have, for his tenacity and his great concern for these prisoners—indeed, concern has been expressed for them all around the House—suggests that the amendment would be a gentle push. With very great respect to the noble and learned Lord, as it is currently expressed the amendment would be a very firm shove indeed. However, I understand that the intention is that these particular prisoners would be released at the point at which they would naturally fall due for Parole Board review, thus phasing their release. Presumably, the retention of the Parole Board’s role in the process is designed to align as much as possible with the current statutory arrangement. However, it would be problematic to give the duty to release to the Parole Board if in fact there was no discretion for the board under this proposal. For these reasons, I do not think that the amendment is the right way to achieve the noble Lords’ objectives.
However, in turning away and facing the principle rather than the detail, the noble and learned Lord, Lord Lloyd, has chosen to concentrate on those with tariffs of under two years, who he suggests have been particularly disadvantaged as they could not have received an IPP after the 2008 changes to the IPP statute. In fact, it remained possible to receive an IPP with a tariff of lower than two years until IPPs were abolished, where the offender had a serious previous conviction, and a fair number continued to do so. While between 2005 and 2008 courts were obliged to impose IPPs in certain circumstances, this was only where they found the offender to meet the dangerousness threshold. The statute, however, did not oblige courts to find the offender dangerous if he had a previous Schedule 15 conviction and it was clear that the court need not conclude that a previous conviction made the offender dangerous if it would be unreasonable to do so.
The noble and learned Lord, Lord Lloyd, and some other noble Lords have seen an analysis of the management information that was put together last year relating to the situation of IPP prisoners who were sentenced before July 2008 with tariffs of under two years who remained in prisons and whose tariff had expired. It is the Government’s view that this analysis supports that position in respect of the group. It provided clear evidence that the continued detention of short-tariff IPP prisoners remains justified and that the Parole Board still considers that in many cases they pose an unacceptable risk to the general public and to themselves. The majority—80 prisoner cases of the 100 sampled—were assessed as at high risk of serious harm, whereas none was assessed as being at no risk of serious harm. Almost all of that sample had had recent parole hearings and were deemed unsuitable for release. However, the fact that 11% of the sample were in fact approved for release clearly also demonstrates that, where risk has been reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.
I know that many noble Lords keep themselves closely informed of the National Offender Management Service’s ongoing work to enhance support for this group of prisoners, but a brief reprise of those efforts bears repeating. We have come a long way in terms of management and support since the introduction of the sentence. For example, NOMS has made substantial improvements to the waiting times for IPP and other indeterminate-sentence prisoners. Once they have been approved for open prisons, in addition IPP prisoners have improved access to accredited programmes and they remain a priority group for interventions. Sentence planning instructions have been overhauled to emphasise that there are a range of interventions, not just accredited programmes, that can provide useful evidence for parole hearings. This has also been emphasised in discussions with Parole Board members. Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs, such as learning difficulties. NOMS will continue to oversee positive changes to the management of IPP prisoners. As I said earlier, the reality is that IPP prisoners are now achieving release in greater numbers under the current arrangements.
Divorce (Financial Provision) Bill [HL]
Lord Davies of Stamford Excerpts(10 years, 4 months ago)
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Lord Davies of Stamford (Lab)
My Lords, I hope that I carry the whole House with me when I say that I think that the law should be, above all, four things. First, it should be clear—the citizen has an obligation to observe it and therefore has a right to understand it. Secondly, it should be permissive—we live in a free society and are proud of that, and a free society is defined by the fact that the state intervenes to restrict the freedom of the citizen only to the extent required to defend and protect the freedom of other citizens. If something is not allowed which, if it were allowed, would not undermine the freedom of other persons, that is an anomaly and should be addressed. Thirdly, the law should be protective of the vulnerable, of the weak and of the less sophisticated against the more sophisticated. Finally, the law should be just and fair. It should reflect the principles of justice and make the proper balance between the protective and the permissive.
In my view, the noble Baroness’s Bill would advance the law in all those four very important respects. First, so far as clarity is concerned and as the noble Baroness has already explained, there is an unanswerable case that jurisprudence in family law has run far away from the Matrimonial Causes Acts. It is impossible to know where one stands and what precedent one might be guided by in trying to anticipate future judgments. That is a very unsatisfactory state of affairs. It is exactly the same with prenuptial agreements. Sometimes they are enforced by the courts; sometimes they are not—it is completely unclear what the law is, and that is very unsatisfactory. When you have a situation like that, it is absolutely the duty of Parliament to do something about it. I congratulate the noble Baroness on having decided to do that with this Bill.
Secondly, in the area of fairness, the Bill introduces the notion of matrimonial property, a concept drawn from Scotland, as the noble and learned Lord, Lord Mackay, has reminded us, and drawn by Scotland from the Roman law tradition which it has. A similar principle exists in the Roman law jurisdictions on the continent, where one can choose on marriage a regime either of séparation des biens or of communauté des biens. If one chooses the séparation des biens, one keeps separate the property that one brings to the marriage from other sources. The noble Baroness’s Bill would introduce into English law the notion of matrimonial property that would be subject to division on divorce and other matrimonial property that would be protected, such as inheritances and—according to the text of the draft Bill before us—gifts. That is definitely an enhancement of justice.
Then there is the contribution that the Bill would make to making the law more permissive. That is achieved through the provisions for prenuptial agreements. In a sense, if you have the rest of the Bill—the matrimonial property et cetera concept—then you have less need for prenuptial agreements, but on the permissive principle it is a good idea to make it absolutely clear that, if people want to enter into these contracts, they should be able to do so. Why? It is simply because, if two citizens wish to have a contract about anything, they should have an assumed right to make that contract—with the normal common-law protections about disclosure of material facts, no undue influence and so forth. The burden is on those who wish to prevent two mentally capable adults from entering into such a contract. We have contracts in this country that are enforceable in law for all kinds of things: employment contracts, sale and purchase contracts, leasing contracts, licensing contracts, exclusivity contracts, partnership contracts and so on. Only gambling contracts are not enforceable under the law in this country. It would be an extraordinary state of affairs to put prenuptial contracts—with all the protections required and that are in the Bill before us with one small exception that I shall come to—on the same footing as gambling contracts.
I should not so much declare an interest as my own record on this matter. Many years ago in the other place, I introduced a Bill to provide legal standing and protection for prenuptial agreements, giving legal force to them. That got to an unopposed Second Reading but was never taken further for reasons of time. I have previous on this particular subject.
It seems to me that prenuptial agreements not only meet the criteria that the law should be permissive wherever possible but also advance the fairness of the law. People have been deeply offended by some of the gold-digging—that is the word one must use—that has had a lot of publicity recently. The McCartney case was famous. There was a case in point recently when one lady might have been involved in successful gold-digging on two separate occasions in the course of a relatively small number of years. That offends the public’s sense of justice. Both the noble Baroness’s provisions on the matrimonial property concept and prenuptial agreements would tend to address that issue and make the law more obviously fair and just. That is a very desirable achievement.
On the impact on people’s willingness to get married, it seems to me that in practice the opportunity of having prenuptial agreements for those who might want to take advantage of them would, logically, encourage more people to get married. Some people certainly feel inhibited without them. In my own anecdotal experience, I can think of people who have been inhibited from formalising their relationship because they wanted to protect family assets of one kind or another that they already had. The Bill would enable them to engage in a marriage with no such inhibitions or fears. That is a thoroughly desirable thing.
I make just one perhaps niggling comment or suggestion, but it is important. Full disclosure should include not merely assets as provided for in the Bill but also liabilities. A false picture would emerge of the net worth of the two parties if the liabilities were not disclosed. Parties to a potential prenuptial agreement might think, if only the assets were fully disclosed, that they both had assets of a similar order of magnitude when in fact one had massive liabilities and the other had none. There might be enormous distortion in showing such a balance, so it would be quite false not to bring to the attention of the two parties a true and fair picture at the outset of the negotiations over that particular contract.
I hope that the Bill makes progress; I think that it is urgent that it does so. I hope that it becomes a part of the law of this country as soon as possible and that the noble Baroness, whom I congratulate again on this initiative, will take on board my one small suggestion.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, like all other noble Lords, I thank the noble Baroness, Lady Deech, for introducing the Bill and for enabling the House to debate the appropriate division of financial provision on divorce. She has done the House a great service by prompting this high-quality debate.
The Bill has the highly laudable aim of seeking to assist divorcing couples and civil partners undergoing separation in resolving disputes over the division of property. It is intended both to recognise and enforce prior agreements between separating spouses and substantially to amend the law on financial provision on divorce.
The Bill makes fundamental changes to the law on financial provision on divorce as it has applied for over 30 years. However, it differs from and goes beyond recommendations made by the Law Commission report, which the Government are currently considering. Comments were made about the speed at which the Law Commission has historically proceeded. There is no criticism of the quality of the work that the Law Commission does and I echo the comments made by my noble friend Lord McNally about the way in which a number of Law Commission Bills have been going through Parliament recently.
The Government are not anxious to pre-empt the consideration that is taking place of the Law Commission’s report. In any event, the Government have a number of concerns about the Bill’s provisions and whether these sufficiently safeguard the needs of children and families so as to avoid potential hardship. I will set out these concerns by reference to the current law, the proposals in the Bill and the proposals on matrimonial property agreements made by the Law Commission.
The current law on financial provision on divorce provides a number of important safeguards. This is governed in England and Wales by the Matrimonial Causes Act 1973. Section 23 provides for lump-sum payments and various other forms of financial provision; Section 24 enables property transfers; and further provisions allow for orders for the sale of property, pension-sharing orders and so on.
The courts have a wide discretion as to what orders to make in any particular case and must have regard to the factors set out in Section 25 of the Act. On the face of it, that might seem to be a fair state of affairs. However, there has been a great deal of criticism during the course of the debate that, although the Act provides for all these matters to be taken into consideration, it nevertheless produces uncertainty of outcome—too much depends, perhaps, on the idiosyncrasies of particular judges and fashions—and it does not enable parties to be sufficiently clear on divorce about what is the likely division of property.
However, Section 25, importantly, says that the first consideration of the court is the welfare of any child of the family under the age of 18. Other factors in Section 25 include the income and earning capacity of the parties, contributions made to maintaining the home and children, the financial needs and obligations of the parties, the age of the parties, the duration of the marriage and any physical or mental disability suffered by either.
The noble Baroness’s Bill provides that Section 25 will be repealed and will therefore no longer have effect in relation to orders for financial provision between the parties to a marriage or civil partnership. The Government would be particularly concerned if this had the effect of weakening the protection given to children when their parents divorce. The noble Baroness has indicated that maintenance for children will not be affected, but the Government are concerned that the removal of the welfare of minor children as the court’s first consideration in making financial provision for spouses might cause adverse consequences for children. This would plainly require a great deal of consideration.
Clause 6 addresses the provision for children of the family and provides that the court must have regard to any order for support of a child of the family, the age and health of any child, the educational and financial circumstances of the child and so on, but it does not make the welfare of the child the first consideration of the court, and thus may not provide as much protection for children as the current law. The Government think that the court should look at the needs of the children first and then go on to consider the division of property between the parents.
The Bill proposes that subject to certain exceptions, matrimonial property, defined as is, should be divided equally between the parties. The Government are concerned that this would also be potentially unfair and could cause hardship, particularly for poorer families and for families with children. The noble Lord, Lord Kennedy, referred to the danger of a one-size-fits-all provision. Moreover, reference has been made during the debate to the changes in society since 1973, including the demographic changes described by the noble Baroness, Lady Bakewell, and women’s increasing equality. None the less, as the noble Baroness, Lady Meacher, said, the old models of marriage do still exist in some sections of society and we cannot ignore them when deciding on an appropriate change to the law, if indeed any is needed. In fact, the Law Commission recommended that there should be no change to the law on need in financial provision on divorce.
The Bill provides that periodical payments for spousal maintenance should be for a maximum period of three years and that lump-sum payments and periodical payments should be intended to enable the recipient to become independent of financial support within three years. An absolute three-year limit on maintenance would be similar to the law in Scotland, referred to by the noble and learned Lord, Lord Hope, and my noble and learned friend Lord Mackay. Having looked at the matter, I see that it emanated from a recommendation by the Scottish Law Commission that eventually became part of Scottish law. But, again, the Government are concerned that this could cause hardship and may be inappropriate for many couples. Having to adjust to a new financial reality may take longer than three years, so the Government currently consider that it is better for the court to retain a discretion to provide as it thinks best to meet the circumstances of each individual family.
Lord Davies of Stamford
My Lords, I am listening to the noble Lord with great attention. Would he be kind enough to say what it is that makes circumstances or human nature different in England from what they are in Scotland?
Lord Faulks
I am not altogether sure whether that is a serious question, but of course human nature is not different. The answer is that there is no perfect solution to these difficult problems, as I am sure all noble Lords would agree. The Scottish solution is one that is certainly worthy of great consideration. The current solution in the law of this country is rather different. At the moment we are all concerned to find a solution which best serves the interests of all parties on divorce. Scotland has much to teach us, but it does not have necessarily the perfect answer. We need to learn from the experience in Scotland while accepting that human nature is the same in Scotland as it is in England.
As I say, the Bill provides for matrimonial property agreements to be binding upon couples on divorce. In its proposals on matrimonial property agreements, the Law Commission has strongly recommended that the courts should be able to depart from a matrimonial property agreement where this is considered necessary in order to protect the needs of a spouse or in the interests of any children. The Bill departs from that proposition. In its proposals on matrimonial property agreements, the Law Commission set out a comprehensive list of the requirements necessary to underpin enforceable agreements made prior to divorce. In considering the Law Commission’s proposals, the Government wish to reflect on the sufficiency of safeguards before committing to legislate to make agreements enforceable. We are currently considering those and, as my noble friend Lord McNally said, we will announce our response to them in the very near future. That will be in August—albeit that I heard what he said about the undesirability of reflecting and responding in that particular month.
The Bill’s proposals differ quite substantially from the recommendations made by the Law Commission in the light of really extensive consultation, which included consultation with family practitioners—although I am glad to say that this debate has benefited from the contribution of family practitioners. The proposals in the Bill are substantially different and their likely effects are at least unclear.
I appreciate, as I am sure the whole House does, the noble Baroness’s desire to ensure that financial division on divorce and on dissolution of a civil partnership is made simpler so that people will much more easily be able to estimate what they are likely to receive and be better able to negotiate with each other, and that couples should be able to enter into agreements to determine what they would receive on divorce.
The Government are considering the Law Commission’s report on matrimonial property agreements and how these could be made binding, and will respond in the near future. The report recommends making information available on the likely outcomes of financial applications on divorce—that has been developed during the debate—but recommends that there should be no change to the law governing “need”. The Government are concerned to give proper consideration to these and all the recommendations made by the Law Commission.
The Government recognise that divorcing couples often need help to reach an agreement and should be encouraged to avoid court proceedings. There is unanimity that court proceedings very rarely help in resolution of these disputes. They are far too expensive and the result is usually damaging both financially and, very often, to the future happiness of warring parties and children. The Government are therefore particularly anxious to encourage people to use family mediation and other forms of alternative dispute resolution.
For those who are eligible, legal aid is available for mediation. Under the Children and Families Act 2014, from 22 April this year applicants for financial orders and for financial provision on divorce must attend a mediation information and assessment meeting—
EU: Police and Criminal Justice Measures
Lord Davies of Stamford Excerpts(11 years, 4 months ago)
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Lord McNally
My Lords, on these specific questions, I have seen only the initial response from the Commission that was carried on the news-tapes; as far as I could see, that response was constructive in terms of welcoming this approach from the British Government. Of course we have had to get to this point before going into more formal discussions, but officials have had technical discussions with the Commission and the Council, focusing on the legal framework under which the decision will be made, to ensure a shared understanding of the legal processes around the 2014 decision. I know that my right honourable friends the Justice Secretary and the Home Secretary spoke today to Commissioner Reding and Commissioner Malmström respectively. There is no doubt that the Commission has responded in a way that we find constructive. I will cover another point made by the noble Baroness, about whether there would be gaps and lacunas in this. That would not be in the interests of any of us; we will negotiate with both sides to make sure that the move from one jurisdiction to another is a smooth one.
On the question of UKIP and how our respective parties respond to it, that is a matter for the political campaigners. However, in this Statement my right honourable friend the Home Secretary has demonstrated what we would expect of her, given her high office. She has taken account of the national security and policing needs in coming to these decisions, and she should be congratulated on that.
Lord McNally
My Lords, on the point about the committee’s report, we will respond to that in due course. I hope that as we move forward we do not get bogged down in the niceties of protocol. The report from the noble Lord’s committee was influential in the discussions that have taken place. This is a little bit like a game of three-dimensional chess. In reaching decisions, the Government are trying to keep both Houses informed and to keep relations and channels open to the Commission and to member states. I hope Members of the House will understand that the issues covered by the 2014 decision are numerous and complex. We have been conscious of the need to ensure that any information we provide is as accurate and as informative as it can be.
Members of the House will be aware that the document today with its five explanatory memorandums is a measure of that commitment to put the information before the House as quickly and as fully as possible. Of course, I think it is implicit in everything that has been said that a second vote will be taken when the outcome of these negotiations are known. Common sense dictates that this will not be finessed through or carried through with smoke and mirrors. Both Houses, with all their experience and expertise, will demand the full facts on which they will base that second decision.
Lord Davies of Stamford
My Lords, is there not something very odd and illogical—weird, bizarre, even—about this Statement? It goes at some length into the merits of the proposals, or measures, that the Government intend to opt back into, so why opt out of them in the first place? It does not say anything at all about the de-merits of the measures that the Government want to abandon definitively. It is not surprising that the House seems to have come to a consensus this evening that what the Government have been conducting is essentially a charade. Will the noble Lord accept that this is a charade not entirely without cost? There will be the cost of an unnecessary negotiation. There will be the exasperation caused to our partners by the fact that we treat them in this particular way. There is, of course, the risk that we will not be able to renegotiate in exactly the fashion we want our resumption of the measures to which we wish to adhere in future—unless of course the Government have already received assurances in advance about that, in which case I hope the noble Lord will be frank and tell the House. Is it not also true that the Government embarked on this quite unnecessary, gratuitous and risky course simply for reasons of the most squalid party-political nature—designed simply to buy off their own Eurosceptics and to keep UKIP from making inroads into the Tory Party vote?
Lord McNally
That intervention would have a scintilla of credibility if it did not come from the Benches that negotiated the specific option with which we are now dealing. The noble Lord cannot get away from that fact. For heaven’s sake, why was Protocol 36 negotiated in the first place if it was not for the opportunity that the House is now taking? The noble Lord can score all the party-political points that he wants, but this was the legacy of the Benches opposite; the Government are dealing with it—like many other things. We are dealing with this, as my right honourable friend has emphasised, with a clear focus on the best assistance we can give to our policing and the best protection we can give to our national security. I am very happy that the Government are able to bring forward such a coherent programme, which is now open to both Houses to study and for a negotiation to progress.
Criminal Injuries Compensation Scheme 2012
Lord Davies of Stamford Excerpts(12 years, 4 months ago)
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Lord Howe of Aberavon
My Lords, I rise to make perhaps a selfish contribution and not to invite the House one way or the other on the issue that has just been raised with some vigour. I speak because of an egocentric pleasure in the existence of the scheme and in the fact that it exists at all. It takes my mind back almost exactly half a century to the annual conference of the Conservative Party at Brighton in 1961. At that conference at that time, on behalf of the Aberavon Conservative Association, modest though that organisation was, I tabled an amendment for consideration challenging hanging and flogging and urging instead a liberal motion calling for a prison-building programme, strengthened probation services, longer sentences and, crucially, the establishment of a scheme to compensate the victims of violent crime.
To my surprise, some weeks later when we were on our Norman holiday near Coutances, a telegram came inviting me to ring up the then deputy chairman of the party, Sir Toby Low, or Lord Aldington, as he is better known to us. I wondered what on earth he wanted. He asked me whether I would be willing to move my motion as an amendment to the usual hanging and flogging motion. I was flattered to be involved with such a question. But he added, “The people here would be much happier if you dropped the last bit about compensation for violence”. The Treasury was worried about the cost, the Home Office about the principle and so forth.
It was a tough choice to throw at a thus far unsuccessful candidate, but I responded by saying, “Certainly not. If I am going to have to take this on, you must not take the sugar off my pill”. Sir Toby Low agreed to consider my point. A few days later came a reply that disappointed me. “Reluctantly”, he said, the authorities had nevertheless agreed to give me a chance. When the debate came it was one of the high points of the conference. Tempers ran high. Our reforming amendment was carried by a large majority and a few months later I was invited by Henry Brooke, the then Home Secretary, to join a committee that he set up to consider detailed proposals for compensation. Within two years, a suitable scheme was established without having any resort to legislation. It was one of the first in the world and has served us well, as the House recognises, for many years.
For me, it was an early lesson in the importance of sticking to one's guns and may be one reason why I have remained such a tiresome creature ever since then. But I commend the subject of the debate. I am tempted to say a little word of sympathy about some of the criticisms, but not so as to offend my noble friend Lord McNally. I am sure that he will deal with them in his reply in a suitably positive way.
Lord Davies of Stamford
My Lords, I am sure that the whole House will have listened with great respect and interest to the intervention of the noble and learned Lord, Lord Howe. The incident that he has retailed from 50 years ago shows what a very humanitarian politician he has been during 50 years of extremely distinguished public life.
My noble friend the Leader of the Opposition and my namesake, my noble friend Lord Davies of Coity, spoke powerfully on this subject and I agree with them. There would be no point in repeating what they just said. But I rise to ask the Minister a question. Can he tell the House what is the average time taken to process applications under the criminal injuries compensation scheme? My noble friend gave us some rather different figures, but if the noble Lord’s figures are correct and annual disbursements are of the order of roughly £200 million and the total liabilities of the scheme are about £500 million, it implies that rather a long time is taken to process each individual claim.
If my noble friend’s figures represent reality, the situation may be slightly better, but it is important for the House to know exactly the effectiveness of the bureaucracy handling this important scheme and therefore what sort of time is taken.
Will the noble Lord also tell us the cost at the present time of administering claims? Perhaps he could break down the average cost of the claim so that we can see how much of taxpayers’ money that goes into the scheme is used for the benefit of victims and how much goes to the administration of the bureaucracy involved.
Lord Stoddart of Swindon
My Lords, I, too, support the amendment moved by the noble Baroness, Lady Royall, and I support the remarks made by both noble Lords, Lord Davies. It will be interesting to see the answer to the question that the noble Lord, Lord Davies of Stamford, posed.
I support the amendment because I believe that the people who are being disadvantaged are the very people whom the Government say they want to look after. They are also the people who make this country work, such as postmen, people in shops and people on the shop floor. They are the people who are likely to be worst affected by these cuts.
It puzzles me why we make cuts of this sort for essential compensation while at the same time we spend huge sums on matters that appear not to matter. We also ladle money out to foreign countries, which perhaps should start looking after themselves.
I had a Question answered about the £10 billion that many countries have agreed to make available to Afghanistan. I asked how much that would cost Britain. The Answer came back that it would cost £170 million a year between 2013 and 2025, so it seems that we can find money to support people abroad. I have no objection to that, but I want decent treatment of the people of this country.
The amount of money that is involved is relatively small. If the Government really believe in this big society in which we will all be treated properly, perhaps they should reconsider what they are doing in the matter of this compensation order.
I do not believe everything that I read in the newspapers about the Government being completely out of touch. But, frankly, almost every day we have an indication that the Government are completely out of touch. For example, the Exchequer Secretary to the Treasury, Mr Gauke, suggested that people who pay cash to some of those who might be injured are immoral for doing so. The Government do not appear to realise that millions of people in this country do not have a bank account. There is only one way in which they can pay and that is in coin of the realm.
I put that forward as an illustration of how the Government appear to be completely out of touch with what is happening in the country and the needs of people, particularly those who are unfortunately victims of accidents or other incidents.
Leveson Inquiry
Lord Davies of Stamford Excerpts(12 years, 7 months ago)
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Baroness Garden of Frognal
The noble Lord asked a number of questions. I was in the Chamber during Prime Minister’s Questions and while the Secretary of State was making his Statement. On his point about the Secretary of State being accountable to the House, I say that my right honourable friend was doing just that in coming to the House to take questions in great detail for well over an hour from Members of the House. I hope that he proved himself accountable to the House on that front.
The noble Lord asked about the role of spads and whether they have a code of conduct. My understanding is that they do. They perform an incredibly useful function, as successive Governments have discovered—but obviously, if something has gone wrong, that needs to be looked into on an individual basis. He also mentioned some of the evidence that we saw in the media today. We need to be somewhat cautious about taking at face value all the reports that appear in the media. This is the very aspect that we are discussing today, and it might be wiser in some respects to wait until the evidence has been fully investigated so that we know which parts of the reports of the media are true and which are somewhat creative.
Lord Davies of Stamford
For the avoidance of doubt, will the noble Baroness confirm to the House that what the Government are asking us and the country to believe is that a special adviser, whose office was no doubt next door to that of the Secretary of State, who saw him several times a day, who worked in close collaboration with him and had been appointed by him as a person of trust, without any instruction from the Secretary of State, without any encouragement, without any connivance, took it upon himself to become deeply complicit with one particular party to a highly controversial decision that the Secretary of State was going to have to make, got into the business of leaking documents, talking about tactics and substance, exchanging views, and never thought to tell his Secretary of State what was going on, to check with him that he was happy with that or to report to him on any of the content of those exchanges? Is that actually the story that the Government is inviting the House and the country to believe?
Baroness Garden of Frognal
Once again, the noble Lord is fielding reports from the media that have not necessarily been substantiated, and it would be wise to wait to see which of them are true. All I can say on the question of Adam Smith’s role is to refer to his letter of resignation in which he states that,
“the content and extent of my contact was done without authorisation from the Secretary of State”.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Davies of Stamford Excerpts(12 years, 9 months ago)
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Lord Davies of Stamford
My Lords, I was not intending to intervene in this part of the debate, but I was absolutely fascinated by what the noble Lord, Lord Thomas, said. He has done a great service to the House and to the country by bringing forward this matter for parliamentary debate. I am going to disagree with what he actually said, but had he not taken the initiative, we would all have been the poorer. We would not have had to focus on this important subject in the way that we will now need to do.
My concern is quite simple. We are in the process in this Bill of restricting access to legal aid. We thereby reduce the scope for businesses or individuals, whether in a tort action or some other kind of action, to pursue their civil rights in court. I take it for granted that an individual who does not qualify for legal aid but is at the other end of the income spectrum, where he or she can easily afford the costs of pursuing cases and the risks of potentially paying defendants’ costs as well, will prefer to do that and would not want to go into any artificial risk-sharing arrangement with a third party or with lawyers by means of contingency fees or conditional fees. Those lucky enough to retain access to legal aid despite this Government’s restrictions on its access, who are perhaps in the bottom 5 per cent of the population in terms of income or capital levels, and the top 5 per cent of the population who are rich enough to consider litigating and hiring solicitors and barristers will continue to have access to civil justice. But there is an enormous problem for the 90 per cent of the population who will be between those two extremes. We should be concerned about them.
I know that lawyers always like to say that any individual who acts as a litigant in person is making a fundamental mistake—the old lawyers’ joke is that such a person has a fool for a client—and one can understand why lawyers like to put that about. Those people who may feel confident in taking a case forward themselves would probably rightly prefer to do so rather than go into some sort of risk-sharing arrangement with somebody else. Any such risk-sharing or cost-sharing arrangements involve a potential conflict of interest.
There is a conflict of interest in the case of hiring a lawyer on a conditional or contingency fee basis. Clearly, there may come a point when the lawyer himself does not think it worth pursuing the case because it is not a good risk from his point of view but his client wishes to continue to do so. There is that conflict, which the noble Lord, Lord Thomas, discussed with regard to other third-party funding in the case of classical contingent or conditional fee arrangements. But if we now say that such arrangements are not possible and we wish to make it a matter of law that certain types of third-party funding shall not be allowed, we further restrict access to justice.
I put it to the noble Lord and to the House that cases where one is brain damaged, has had a bad accident or suffered medical negligence have great resonance with all of us because they are horrible situations for anyone to find themselves in. Like other noble Lords who have served in the House of Commons, I have come across many cases of that kind. Clearly, any arrangement under which somebody else has a share in any potential damages seems at first sight to be obnoxious. But if the alternative is that one cannot get justice at all because one does not fall into the bottom 5 per cent or the top 5 per cent of the population as I have described, we are in an even worse position.
I accept that the amendment was conceived with the best possible motives and on the basis of considerable familiarity with civil justice, but the effect would be to exclude certain people from any chance of pursuing a case at all because they do not feel able to pursue the case as a litigant in person and they do not have the funds required to arrange a conventional civil action hiring lawyers in the classic fashion. Maybe no lawyer is willing to take them on on a contingency or conditional fee basis, because lawyers do not take a sufficiently optimistic view of the risks involved or the return involved in relation to the risk in particular case. However, some third-party entrepreneur or investor may be willing to do so. The noble Lord does not want to exclude such third-party funders in commercial cases, but he would exclude them in personal cases in a large number of circumstances. The House should think carefully before we exclude or shut off anybody from access to civil justice by any means. The important thing is that there should be full disclosure of the risks and full explanation by those who will undertake to invest in a case as to what the conditions are.
It may well be that there will be points along the line at which there will be a difference between the investor and the litigant as to whether it is worth pursuing the case. That can arise in the case of a commercial third-party investor, or of a friend or family member who is prepared to support a friend or relation in a case. When it comes to the question of a settlement offer, they may take a different view. It is in the interest of everybody that there should be a clear contractual basis, agreed at the outset, as to what happens in those circumstances. I do not think we should exclude anyone from coming to an arrangement that happens, with full disclosure and understanding on both sides, maybe in less than desirable circumstances, to best meet the needs of the case.
Lord McNally
My Lords, this has been an interesting and useful debate and I am grateful to my noble friend for outlining the matter with his usual thoroughness. Third-party litigation funding has developed and—to use the phrase deployed by the noble Lord, Lord Boswell—there is a welling up of disquiet about it. The noble Lord, Lord Davies of Stamford, takes what I would describe as the Robin Hood approach to this matter and views it rather optimistically as a way for the rich to help the poor. The noble Lord, Lord Boswell, was a little more sceptical about that scenario and drew on his American experience of how the process works. I think that people are a little worried when investors and investment opportunities are mentioned—the noble Lord, Lord Davies, mentioned that matter—when we are talking about the law.
I was delighted to hear the noble and learned Lord, Lord Mackay of Clashfern, mention Lord Simon of Glaisdale, who I remember speaking from the Cross Benches. You used to see the colour draining from a Minister’s face as he realised that Lord Simon of Glaisdale had thoroughly read and filleted the relevant Bill and knew exactly the contradiction in the government amendment that he was about to dissect. I experience that same feeling of foreboding whenever the noble and learned Lord, Lord Mackay, rises to speak. The noble and learned Lord said that Lord Justice Jackson could not be criticised for his brevity. All I can say to him is that Lord Justice Jackson is not alone among lawyers in that failing. I look at no one in this House in saying that.
Like other noble Lords, however, I take on board the noble and learned Lord’s point about the need to exercise caution in this matter. I think that the noble Lord, Lord Beecham, caught the mood of the House when he referred to the concept of legal hedge funds being established and cases being bundled up as investment opportunities as something that gives rise to rightful concern.
The code of conduct was drawn up with the specific requirement that the matter would be revisited if and when third-party funding expanded. It is a question of whether it has now expanded to a point where the matter should be revisited. As the noble Lord, Lord Thomas, explained, the Civil Justice Council published a voluntary code of conduct for litigation funders on 23 November. It was drawn up with the co-operation of the Association of Litigation Funders.
What I can say is that some serious points have been made during this debate, to which I have listened extremely carefully. My right honourable and learned friend the Lord Chancellor would like further time to reflect on these matters. They are serious, and some serious and worthwhile advice has been given. I see that the noble Lord, Lord Davies, is about to leap to his feet, and perhaps I may say that there was good and useful advice on both sides of the argument. I ask my noble friend to withdraw his amendment so that the Lord Chancellor can reflect on this issue. I shall not sit down if the noble Lord, Lord Davies, wishes to intervene.
Lord Davies of Stamford
The noble Lord is extremely kind. Does he agree that the best way of looking at this situation is to try to find the least undesirable possibility, or a less undesirable possibility, of a whole lot of very undesirable possibilities? Those are the only possibilities that exist. It would be lovely if legal aid was universally available for civil justice, and there were people in the 1940s who thought that that might happen. Sir Hartley Shawcross was saying at the time that he thought that legal aid could be turned into a kind of National Health Service equivalent for civil justice. We know that that is not financially conceivable.
The Government are engaged in further cutting back access to legal aid. I disapprove of that because it is an undesirable objective. We introduced conditional fees. I remember having a conversation with the noble and learned Lord, Lord Mackay, after I introduced an access to civil justice Bill in the House of Commons. He asked me not to take it any further because he was thinking of introducing conditional fees as a government initiative. I agreed with that at the time. He said that the Bill had certain inadequacies and did not cover all cases. However, when we introduced contingency fees, a lot of perversities were attached. I concede that, at first sight, investment in a tort case just as a commercial transaction seems unedifying and unattractive. However, I put it to the noble Lord that all these solutions are undesirable. The most undesirable solution of all might be further to restrict access to civil justice for whole categories of potentially meritorious cases.
Lord McNally
My Lords, I am sure that that postscript will be studied by the Lord Chancellor, and he will carefully study this debate. As I was saying in my concluding remarks, I thank my noble friend Lord Thomas for introducing this subject and noble Lords for expressing a variety of views on it. The Lord Chancellor would like further time to reflect and I ask my noble friend to withdraw the amendment.
Courts: Super-injunctions
Lord Davies of Stamford Excerpts(13 years, 6 months ago)
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Lord McNally
The noble Lord, Lord Bach, has more experience on this. The chief statistician is looking into the matter. We hope to be able to give those figures shortly.
Lord Davies of Stamford
My Lords, is not a right to a private life and respect for privacy an essential, indeed defining, characteristic of a free society? Of course, there must always be an over-ride where there is a connection between private behaviour and the fulfilment of public responsibilities, including voting and speaking in Parliament. In that connection, is it not intolerable that important sections of the media, in pursuit of a commercial agenda in competition for getting more titillating material to increase their sales, think nothing quite regularly of bribing informants, of surreptitious surveillance and photography, of tapping telephones and of using the methods normally associated with the activities of a secret police in a totalitarian society? Is this not a national disgrace and should not Parliament and the Government face up to their responsibilities and legislate on the issue?
Lord McNally
I think I was with the noble Lord right to the last bend, there. Of course, in a free society we have to recognise those rights that he has just recognised, but also in a free society we recognise the need for a robust and free press. The noble Lord laid down a catalogue of sins, which throws a challenge to our press. I know that noble Lords on all sides of the House want to defend a free press, but the press has a duty to put its own house in order to see whether some of the faults that the noble Lord outlined should not be more robustly dealt with by the self-regulation that the press claims to be so proud of.
Bribery Act 2010
Lord Davies of Stamford Excerpts(13 years, 8 months ago)
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Lord McNally
My Lords, again I cannot help but draw attention to the fact that there is a sense of unity in the House on this. We are proceeding with all due speed on the matter. One thing that gives me encouragement, having sat in on a number of the meetings the Lord Chancellor has had with industry, is that industry itself seems to be quite capable of living with this Act. I take note of what my noble and learned friend has said, but I do not think that this is a matter of the reputation of the Lord Chancellor, although there is the question of implementation on which I hope these exchanges will be duly noted.
Lord McNally
My Lords, the Government are taking strong action on anti-corruption, including the recovery and freezing of corrupt assets in the areas the noble Lord has referred to, but the message is clear from this House that there is a matter of national reputation involved in any further delay. I duly take note of that.
Lord Davies of Stamford
My Lords, have any bribes, facilitations or other payments that might or could be bribes within the meaning of this Act been paid from public funds to Libyan officials over the course of the past few weeks? If so, at what level and by whom were those payments authorised?
Parliamentary Voting System and Constituencies Bill
Lord Davies of Stamford Excerpts(13 years, 10 months ago)
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Lord Kennedy of Southwark
My Lords, I am asking the Committee to agree to delete the words,
“may take into account if, and to such extent as they think fit”,
and insert “should take into account”. Some noble Lords may think that that is just an emphasis of words; it is much more than that. Changing “may” to “should” shows our intent. We want that to happen; it is important; I think that it must happen. It is vital that the Boundary Commission takes into account special geographical considerations, local government boundaries and local ties that would be broken by changes in constituencies and the inconveniences attendant on such changes. If the Boundary Commission does not do that, frankly, what is the point of the Boundary Commission? Surely all noble Lords would want the Boundary Commission to take these factors into account, not to leave the provision at “may”.
I am hopeful, as are many other noble Lords, that there may be some movement on the Government side to take in the concerns expressed in this House. I hope that we will not be disappointed later this week. This is this House doing its job, because there is no one else left to provide the detailed scrutiny. Is it not right that the Boundary Commission should take it into account that having a constituency on both sides of the Mersey or on both sides of the Thames may not be the best drawn constituency? Is it not right that the Boundary Commission should take into account the realities of rural communities in Lincolnshire and the relationship between those communities? Is it not right that the Boundary Commission should take it into account that Nottingham City is a unitary authority? It has three Members of Parliament representing seats contained wholly within its boundaries, and there are considerable differences between the city and the rest of the county. Is it not right that the Boundary Commission should look at the historic county of Rutland and decide that it is better that it stays with Melton to form one parliamentary seat, rather than being chopped up and thrown to the winds? Is it not right that the Boundary Commission should take account of ward boundaries, as they are the building blocks of our constituencies? Is it not right that the Boundary Commission should take into account the uniqueness of Corby?
As I draw my remarks to a close, I look forward to the debate and the Minister's response.
Lord Davies of Stamford
We touched on this matter before, but it seems to me important to make the point quite clearly that there seems to me to be all the difference in the world between “may take into account” and “should take into account”. I ask noble Lords to put themselves in the position of members of the Boundary Commission—or members of any commission charged by Parliament to undertake an important task. If you have a criterion that says that you “may” do something, that is not a positive criterion; that is not guidance that this is a value on which Parliament sets some store; that is not a message from the people via Parliament to respect certain considerations or to take them into account. It is not a positive criterion at all—it is the absence of a negative criterion. The phrase “may take into account” means that, if you are minded to do so, if you really want to do so, we do not prevent you from doing so. We do not deny you the opportunity of doing so. However, there is no positive suggestion whatever that these considerations should be taken into account. Can that seriously be the Government’s intention? Is it seriously the intention of anyone in this Committee that some positive value should not be ascribed to considerations such as local government boundaries, for example, or, going back to our former debates, a sense of local community and so on? Surely the whole tone of our debates has been that these are genuine values, and the question is: what sort of trade-off should we make between these considerations and the desiderata, which are genuine, as I have always admitted, in terms of uniformity of numbers? I give way to my noble friend.
Lord Howarth of Newport
When the Bill says “may take into account”, is it not either disingenuous or simply confused? In reality, the 5 per cent limit in tolerance around 76,000 voters means that in practical terms it will be impossible for the Boundary Commission to take these other factors of geography and local government alignments and so forth into account, should it wish to do so. It can perhaps take them into account but there is nothing it can do about them.
Lord Davies of Stamford
My noble friend makes a very important point. It is a separate point but it is obviously clearly related. If you allow someone to do something or if you provide a purely permissive criterion—what I would call the lack of a prohibition; that is all it is—the question is whether they will have the slightest motivation in the first place to use that permissive ability that they have been granted. As my noble friend says, there is no suggestion at all in the Bill that these matters should be given any consideration or value whatever.
It is perfectly true that, until now, historically the Boundary Commission has in practice tried to respect local government boundaries and county boundaries in almost all cases, although I gather from our earlier debate this evening that there may be some exceptions in respect of ward boundaries, for example. Nevertheless, we are now giving the Boundary Commission new instructions which do not set any explicit value on these things at all. The Bill says, almost reluctantly, “Well, you can take account of these things if you really insist on doing so”. However, as my noble friend said, we then provide other constraints—particularly that of the 5 per cent rule and the requirement to reduce the number of MPs by 50 to 600, which we know will produce a very large number of boundary changes. In practice, that will make it certain that, even if the Boundary Commission is minded to take advantage of its ability under the Bill to consider matters of local boundaries, it will not be able to do so. The commission is receiving no indication whatever from Parliament in the Bill as it currently stands that it might be desirable to retain the tradition which it has long maintained of respecting these boundaries. Therefore, I think that there is all the difference in the world between “may” and “should”, and I congratulate my noble friend on bringing this dilemma to the fore. It is something that we really do need to discuss.
We have heard time and again from the Government and elsewhere on the government side that, other things being equal, they believe it is inherently desirable that local boundaries are respected. Can they not, if they wish to do so, come up with different wording which at least reflects the value that they acknowledge we should be attributing to these considerations? Can they not send a signal to the Boundary Commission which says in effect, “If you possibly could, we would be delighted if you were to take account of local boundaries”? Can we not send some signal or instruction to the Boundary Commission saying, “For generations”—ever since 1949, I believe—“you’ve been right to take account of these considerations. Please don’t drop that now. We aren’t trying to tell you that that was wrong. We aren’t trying to tell you that you should go back on that tradition or those values and ignore them. We’re not just giving you a reluctant permission if you really insist on taking account of these things; we would like you to do so if you can somehow manage it”.
That surely is the sense of the message that Parliament wants to send to the Boundary Commission—the sense of the message that has been articulated in different ways from all parts of House, including from the noble Lord, Lord Tyler, who has taken an important part in these debates. Surely the Government cannot really, on reflection, be entirely satisfied with this very negative formulation of “may”. I hope they can accept the proposal of my noble friend that the text should be changed to “should”. If not, can they not find some better way of encapsulating the message which, I am sure, in good faith, they themselves have been delivering to us, not just tonight but throughout our deliberations on this Bill?
Lord Foulkes of Cumnock
We are debating not just the amendment moved by my noble friend Lord Kennedy but, if I understand it correctly, we are dealing with 12 amendments—each one of great importance. Perhaps it is worth noting that, if we actually had wanted to filibuster, we could have degrouped all these amendments and taken two hours on each of them. Maybe, since there are no Cross-Benchers here, there is no one here to convince of that, so I will get on to the specifics of the two amendments that I have tabled and left in the grouping.
Amendment 74B, which I particularly want the Minister to take note of, relates to the use of ward boundaries. My recollection was that, in reply to a previous debate, the Minister—the noble Lord, Lord McNally—confirmed that he saw ward boundaries as the building blocks for all of the boundaries that we were going to look at, whether there were 600 or 650, whether they were preserved or whatever. We on this side were all encouraged by that. If he wants an amendment to encapsulate that very simply, and to accept an amendment—which would be really welcome on this side—Amendment 74B is exactly the one he could accept. I do not think there is anything deficient in it; it is exactly the right thing.
I remind my noble friends in particular that when I first stood for election in 1970, both for the United Kingdom Parliament and for the City of Edinburgh Council—I got elected to that council in that year but not to the Westminster Parliament—at that time in Scotland, there were effectively two layers of government: local government, elected by first past the post, and the United Kingdom Government at Westminster, elected by first past the post. I am sure my noble friend Lord McAvoy remembers those halcyon days only too well. In 2011, we now have councils and larger wards elected by the single transferable vote; we have the Scottish Parliament, elected by the additional member system; we have Westminster, still elected, thankfully, by first past the post, and the European Parliament, elected by a strange system of proportional representation.
I am not blaming the Government or their predecessors for all of these—
Lord Davies of Stamford
I am grateful to my noble friend for giving way. I have been fascinated by this description, which is very clear and concise, of the extraordinarily complicated voting system there is in Scotland. What proportion of his former constituents does he think would be capable of setting out as clearly as he has just done the clear categories involved in voting for these different levels of government and the mechanisms employed in each case?
Lord Foulkes of Cumnock
Actually, quite a lot of them, because we still have a very good education system in Scotland, at a very high level. We have provided explorers, inventors, and leaders, not just for the United Kingdom but for the Commonwealth and around the world. The first Labour Prime Minister anywhere was in Australia and he was a Scotsman—indeed, he was an Ayrshire man, even better.
Nevertheless, the noble Lord’s point is absolutely right. It is a very complicated system, not just for the Scottish voter, who can understand it, but for the administration. That is why anything that can be done by the Government to simplify the arrangements instead of making them even more complicated would be good. As I was saying in mitigation, I do not blame Conservative or Tory-led coalition Governments for bringing in all these schemes. Far from it—Labour Governments brought them in, and I think it is unfortunate that we have ended up with such a complicated system. That is why I argue the case for Amendment 74B. I hope that some of my colleagues will elaborate on that at a later stage.
The other amendment that I want to talk to at a little greater length is Amendment 74A. I think that, with no disrespect to my other amendments, it is one of the most important, if not the most important, amendments that I have tabled. As I mentioned on an earlier amendment, page 10 sets out that a Boundary Commission may—one of the amendments suggested “must” should replace “may”—
“take into account, if and to such an extent as they think fit … special geographical considerations, including in particular the size, shape and accessibility of a constituency”.
My amendment is probably not the most elegant, but I think it is a key amendment. It adds “the wealth of a constituency”. That is probably not the best word to use. It could have been “deprivation” or “poverty” in contrast to wealth. The Minister, with all his advisers, will correct me if I am wrong, but my recollection is that way back in the early 1970s when the Boundary Commissions were looking at boundary reviews, a similar factor was included for their consideration. I seem to remember going to boundary hearings—which we still have, unless this Bill becomes an Act—and as well as arguing the physical boundaries, arguing the case for the relative poverty and deprivation in an area. I think that should be included.
The noble Lord, Lord McNally, who generously gave way to me for an intervention in his reply on the previous debate, was arguing very convincingly a conclusion that he did not come to. It was that lots of constituencies have particular problems. In rural Scotland, the problem is sparsity. It is an astonishing fact that Scotland represents one-third of the land area of the United Kingdom and the highlands of Scotland represent one-fifth. That is a very strong argument for what my noble friend Lord Stevenson and others were arguing earlier on about the importance of sparsity.
Equally, the noble Lord, Lord McNally, said that others from inner-city areas were arguing the particular problems of inner cities and deprivation. That is absolutely true. This side has been arguing that. They are not conflicting arguments, they are complementary, and they are arguments for not reducing the total number of constituencies. We have been deploying them because some areas have inexplicably been taken out to be made special cases, whether Orkney and Shetland or the figures that we discussed earlier that give special status to Ross, Skye and Lochaber. I think we need specifically to include something in relation to deprivation.
Scottish Government findings have shown that in 2008-09, 34 per cent of individuals in deprived areas were in relative poverty, before housing costs, but in the rest of Scotland, that figure was 14 per cent, which is a huge difference. That means extra problems of benefits and housing that Members of Parliament have to deal with. I know when I was a Member of Parliament, housing and benefits were the top issues that I had to deal with. That was in a relatively deprived former mining area.
Lord Tyler
My Lords, I recollect that some 10 hours ago the noble Baroness, Lady D’Souza, my noble friend Lord Strathclyde and the noble and learned Lord, Lord Falconer of Thoroton, encouraged us to be brief and to the point, and I shall be extremely brief and to the point on this very simple amendment. I shall resist all temptation to take a leisurely lane in my constituency—as was the case last week, so often during the middle of the night. Instead, I shall simply move a very straightforward amendment that would be a modest improvement to the Bill.
Under rule 5, there is no reference to existing constituencies. That, I believe, is a pity, and this simple reference in Amendment 74BA would simply add an appropriate respect for existing constituency boundaries to the list of criteria that the four Boundary Commissions should take into account in making recommendations. It is very simple and useful. It would indeed take up the point made by the four Boundary Commissions: that they want to have, to such an extent as they think fit, responsibility for examining these sorts of criteria. I very much hope that my noble friend the Minister will feel able to accept this modest improvement to the Bill. I believe that all parties in both Houses, and, more importantly, the public, will welcome the recognition of the need to avoid unnecessary disruption to existing constituencies. I therefore beg to move.
Lord Davies of Stamford
My Lords, the noble Lord, Lord Tyler, may not have expected me to rise to my feet to support his amendment, but I do so willingly. I shall also do so briefly. The effect of his amendment, as I see it, would be to create a bias in favour of not changing existing constituency boundaries. It would in fact be, for the first time in our system, recognition of the costs of change. There are costs of all kinds: costs in disruption, costs to the political parties and to local authorities and, above all, the unquantifiable but very real cost that we have discussed throughout our proceedings of individuals feeling less attached to the constituency that they thought they were a part of.
As I understand it, the noble Lord, Lord Tyler, has taken into account all these considerations and said, “Surely, when in doubt, don’t make a change”—or even if there is a small doubt, do not make a change. He has not attempted to quantify the instructions that we would be giving to the Boundary Commission if we accepted this amendment. He has left it to the judgment of the Boundary Commission, which is right. However, he has alerted it to what the view of Parliament would be if his amendment were adopted—the view that it is important, whenever possible, not to change existing loyalties and perceptions of local constituencies and much better to preserve the status quo. It is a very sensible amendment. The noble Lord is to be applauded for having conceived it and brought it forward. I hope that it meets with the approval of the whole House.
Lord Lipsey
My Lords, this is not only a sensible amendment but a very important one. Because the noble Lord moved it very briefly—he was right to do that, given that he knows that the House is sitting very late tonight and is keen to make further progress—its full significance could not be brought home to us. It is important for what it does, because it is obviously right that this should be one of the factors that the Boundary Commission takes into account. It is more important for what it symbolises—the fact that there is, on all sides of the House, recognition that we should be very chary about going into this situation of a permanent revolution in constituency changes.
By itself, the amendment would contribute only modestly to avoiding that malign outcome, because it has to be combined with what is at the moment the 5 per cent rule in the Bill, which, as we have seen so often, causes knock-on effects. One constituency grows slightly, which changes the next one and the next until, in the end, it is very difficult to preserve boundaries. It also has to be combined with the five-yearly review—another unwise feature of the permanent revolution. Nevertheless, a chink of light has seeped under the door on to the true nature of this Bill and the true changes that need to be made to it. Given that it comes from the noble Lord, Lord Tyler, I cannot believe that the Government will not wish to recognise this and support the amendment that he has laid before us tonight.
Legal Aid and Civil Costs Reform
Lord Davies of Stamford Excerpts(14 years ago)
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Lord McNally
I thank my noble friend. His question gives me the opportunity to mention a point raised by the noble Lord, Lord Bach, to which I did not respond. If not exactly ring-fenced, criminal legal aid is more protected because we take the view that when people are on trial for a criminal offence, it is important that they have access to justice and legal aid. However, that does not mean making a choice between criminal and civil cases, other than that, in terms of access to justice, a criminal charge is more serious.
The exceptional funding scheme will go wider than assistance for inquests, and it will indeed be available for those who may find themselves out of scope in these decisions but who have an exceptional case to make. I note what my noble friend says. We are well aware that we are making tough decisions that are needed to ensure access to public funding in cases that really require it and in protecting the most vulnerable in our society, as well as encouraging the efficient performance of our justice system. As we have made absolutely clear, those decisions are motivated partly by economic circumstances but also by a view that the legal aid system, as the noble Lord, Lord Bach, acknowledges, needs to be recalibrated and rebalanced, and that is what we have tried to do.
Lord Davies of Stamford
I am very sorry that the noble Lord just brushes aside the leaks in this case—
Lord McNally
My Lords, I associate myself with the comment of the noble Viscount, Lord Slim, about the noble Lord, Lord Bach, and his record in this area. Within the constraints in which we find ourselves, we certainly intend to make sure that our responsibility to service personnel and their families remains. Exceptional funding will remain available where there is a significant wider public interest in the applicant being represented at an inquest. Therefore, the families of service personnel will still be able to access legal aid funding for representation at inquests into their loved ones’ deaths. Rebuilding the military covenant is one of the top objectives of this Government, and the Ministry of Defence is currently considering how best to fulfil that covenant.
Lord Davies of Stamford
My Lords, I am very sorry that the Minister just brushed aside the leaks in this case, as the Government always seem to do, by saying that it is just a matter of the world that we live in. It is a matter of the world that we live in only because it is tolerated. It is about time the Government adopted a slightly more rigorous approach to investigating and pursuing these things, as the Ministry of Defence did in the previous Parliament. I very much welcome the Government’s decision to propose that success fees should no longer be chargeable to defendants. It seems quite wrong to penalise defendants because of the funding structure that plaintiffs agree with their lawyers. Does the noble Lord agree that one of the great anomalies and problems of legal aid is that the costs incurred by a successful defendant cannot be claimed against the plaintiff? That is not only unfair, unjust and unbalanced between plaintiffs and defendants and legally aided plaintiffs and non-legally aided plaintiffs; it clearly reduces the financial disincentive to litigate marginal cases. Do the Government have any plans to deal with that anomaly?
Lord McNally
I think that I had better duck for cover in this case. I hear the point that the noble Lord makes. If we already have specific plans in this area, I shall write to him; if not, I shall make sure that that point is fed into the discussions that will be part of the review, which will go on for the next three months.
On investigating leaks, at the very beginning of my career I recall the Labour Party, under Harold Wilson, setting up a leaks inquiry and the first meeting of that inquiry being leaked to the Guardian. I was not dismissing the issue; I deplore it and, as I said at the beginning, I wish that we could get back to the rather old-fashioned idea that statements are made to Parliament and then the newspapers report them.