Legal Aid

Lord Faulks Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government whether they are satisfied that the Legal Aid Agency’s evaluation of tenders for the new duty solicitor contracts was fairly and effectively conducted.

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

My Lords, we are. The Legal Aid Agency followed a robust and fair process in assessing duty tender bids. The assessment process was subject to careful moderation and management at all stages, including independent validation. All staff who assess the bids received comprehensive training to ensure transparent, consistent and fair treatment of all bids.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, two whistleblowers involved in this assessment process have now said publicly that there were too few staff, many of them virtually untrained agency temps with no relevant experience, and that assessment of the bids and moderation of the assessments were subjected to highly unreasonable time targets. Now that this has led to 100-plus legal challenges and calls from the Law Society for a full and proper investigation, what do the Government propose to do to review the process in view of the Answer just given by the noble Lord?

[Lord Faulks]

The noble Lord is right that this has been the subject of legal challenges, just as the bidding process itself was subject to an unsuccessful judicial review. There have been individual legal claims under public procurement regulations and a judicial review in relation to the process. It is inappropriate for me to comment in detail about matters which are the subject of litigation. However, I can say that about 19% of the staff were temporary. The Government are satisfied that these staff were thoroughly adequately trained and that what they were asked to do was reasonable in the time afforded to them.

[Lord Bach (Lab)]

My Lords, can the Minister confirm that the criminal duty tender policy, which seems to have gone so wrong, was agreed by both parties in the coalition in 2013? Can he tell the House the current estimate of the eventual cost of the litigation now under way and when he expects that litigation to conclude? Finally, is it not well past time to scrap this ridiculous policy and begin negotiations again with the Law Society and the criminal law solicitors’ groups on a more sensible and sustainable way forward?

--- Later in debate ---

[Lord Faulks]

The noble Lord seems to suggest that the Law Society was not enthusiastic about the process. In fact, in its response it said:

“The Society agrees, for the reasons given below, that change is needed in the procurement of criminal defence services. There is good evidence that the existing market is unlikely to be sustainable in the longer term and that this represents a significant risk for the integrity of the system”.

The Government were trying to ensure that there was adequate representation on the duty provider basis, that this was more efficiently provided and that there was a fair system for making sure that taxpayers’ money was properly spent.

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as a member of the Law Society but we all have an interest in ensuring access to justice. As my noble friend Lord Marks mentioned, two whistleblowers have pointed out how flawed the process was, In addition, there is the potential for mass litigation involved in this duty solicitor procurement. Should not the MoJ stop trying to brazen this out, simply scrap this procurement and start again?

[Lord Faulks]

No, that presumes the outcome of the litigation. Disappointed contractors may well feel it necessary to challenge and decide it appropriate, as is their privilege, to use the legal process. We have not yet had the legal process, nor do we know what the result will be. There have already been some preliminary hearings, but we are some way from a full judgment. Both the individuals were employed as commissioning assistants in a junior role. We are in no doubt that what happened was a perfectly appropriate way of assessing the competence of the solicitors and their appropriateness for the contract.

[Lord Clinton-Davis (Lab)]

Have the Government received any representations from the Law Society in the light of this Question? Will the Minister signify how the Law Society has reacted? I am in accord with what he has said, but I think it is important that he should be more accurate about it.

[Lord Faulks]

Of course we listen to what the Law Society says: the Law Society represents solicitors and I am sure that a number of them are disappointed at the outcome, although they will still have an opportunity for own-client contracts and as delivery agents for those solicitors who have a duty provider contract. I should perhaps reassure the House that the Legal Aid Agency has monitored and will continue to monitor the quality of the delivery of services through its well-established audit and peer-review programmes.

[Lord Tomlinson (Lab)]

Will the Minister answer my noble friend Lord Bach’s first question about the role of coalition members of the Government? Did the Liberal Democrats support the policy when they were in government?

[Lord Faulks]

I am not sure whether the Liberal Democrats supported it. The fact is that it is government policy and we are pursuing it. Whether they supported it tacitly or had reservations seems beside the point if the process is fair, as we say that it was.

[Lord Cotter (LD)]

My Lords, it is clear that this has been a very faulty process. I give an example. A very reputable organisation with quality and community knowledge in London has been ignored and not appointed in any way. The work has been given to firms in Stafford and Leicester. It is surely ridiculous when a firm based in London has a great reputation that work for London should be given to firms in Stafford and Leicestershire.

[Lord Faulks]

The noble Lord picks on one disappointed solicitor. No doubt a number of solicitors are pleased with the result and feel that it is an adequate response. I fear that some solicitors will be disappointed, but the noble Lord will realise that it is necessary to effect some consolidation—apart from anything else, because there has been a significant drop in the crime rate, which is good for most of the population, although perhaps less good for some solicitors who rely on crime for their living. I am glad to say that the crime rate began to drop in 2007, when the party opposite was in government. It has continued to drop and is now at its lowest rate since 1970.

Prison Service: Trans Prisoners

Lord Faulks Excerpts

Tuesday 24th November 2015 Lords Chamber

[Baroness Barker]

To ask Her Majesty’s Government, in the light of the death of Vicky Thompson, whether they will review the Prison Service’s treatment of trans prisoners.

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

My Lords, I offer my condolences to Vicky Thompson’s family and friends. Every death in custody is a tragedy and we are committed to reducing their numbers. While investigations are ongoing it is inappropriate for me to comment on the circumstances of Miss Thompson’s death. The policy on the care and management of prisoners who live or propose to live in a gender other than one assigned at birth is currently under review.

[Baroness Barker (LD)]

I thank the Minister for that Answer. Recent events have shown that placing trans women in male estates is dangerous. Does the Minister agree that trans prisoners should be housed in the estate of their acquired gender in the first instance and moved to another estate only following a thorough investigation that rules out all other safe alternatives?

[Lord Faulks]

My Lords, Prison Service Instruction 07/2011 sets out the National Offender Management Service’s policy on the care and management of prisoners in the circumstances outlined by the noble Baroness. It suggests that, in the first place, somebody’s gender, whether their original gender or one that they have chosen under the Gender Recognition Act, should be reflected in where they are housed. Nevertheless, there is a degree of discretion allowed to the Prison Service, which it exercises, to make sure that someone in that situation is treated with appropriate care, consideration and sensitivity.

[Lord Cashman (Lab)]

My Lords, mindful of the review of the current policy, what urgent steps will the Minister take to review the location of all trans people in prison and to move them to appropriate prisons according to their acquired gender, to avoid a repeat of the tragedy that befell Vicky Thompson?

[Lord Faulks]

The important thing is that there is no generalisation here. It is important to assess each individual prisoner according to the stage they are at and their particular case. It might be a diagnosis or they may have fully realised their gender transformation. That individual assessment is carried out by the Prison Service, involving the assistance of psychological services and healthcare experts. It is after that assessment that they should be assigned an appropriate part of a prison.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister assure the House that the policies he just outlined apply in young offender institutions? I believe that Miss Thompson was 21 when she died and assume that she was in an adult prison, but I think it is common knowledge that people tend to become aware of their transgender nature when puberty emerges. Therefore, young offenders are particularly vulnerable and require particular care.

--- Later in debate ---

[Lord Faulks]

The noble and learned Lord makes an important point. I assure him that the policy applies throughout the prison estate and the youth estate. I entirely accept that these matters sometimes occur at an earlier stage, before somebody becomes part of the adult custodial estate. Of course, there may be many other aspects that need careful consideration apart from the problems with gender. Those can provide a real challenge to those working in the prison.

[Lord Scriven (LD)]

Can the Minister confirm that the guidelines to which he has just referred, PSI 07/2011, had an expiry date of 14 March 2015? Therefore, there has been an eight-month gap when those guidelines are no longer applicable because they are past their expiry date. If those guidelines are being updated, what open invitation has been given to trans support groups to help the Government update the guidelines?

[Lord Faulks]

The noble Lord makes what he may think is a clever point, but I refer him to paragraph 2.6 of the instruction system, on “The Approval and Implementation of Policy and Instructions”, which provides as follows:

“Regardless of expiry dates, instructions remain in force until specifically cancelled, marked ‘obsolete’ or replaced and removed from the Intranet”.

That policy does not fall into that category; it remains current.

Of more substance—of course it is very important that in formulating any change to the Prison Service instruction we take account of the trans community’s views; we are doing so, as my ministerial colleague explained in answering a question of a similar nature to the House of Commons last Friday.

[Lord Beecham (Lab)]

My Lords, the whole House will join the Minister in expressing condolences to the family of Vicky Thompson, and also welcome the Government’s response to this tragic case and look forward to the outcome of the review that has been announced. There have been 186 suicides in prisons in the year to September, and a 21% rise in self-harm. Those statistics reflect the pressure on prisons and staff, echoed in the latest report on Feltham young offender institution. Therefore, will the Government’s review extend to the size of the prison population, and will the training of prison staff—the briefest of any comparable country—be substantially extended in time and depth?

[Lord Faulks]

I do not wish to pre-empt what may be considered appropriate to be considered under the review. Certainly, training would be an extremely important factor. The training has been extended to cover a specific module for prison officers to consider equality provisions, which takes into account particularly the protected characteristics of transgender prisoners. The scope of the review will embrace all things that are relevant to make sure that the Prison Service treats such prisoners appropriately. The original Prison Service instruction is an impressive document but, of course, there is room for continual improvement, and we will endeavour to arrive at an appropriate destination.

[Lord Marks of Henley-on-Thames (LD)]

Does the Minister recognise that one difficulty under the existing system, with giving priority to legal gender, is that trans people who turn out to be offenders may be the least likely to apply for gender recognition certificates under the 2004 Act? Will the government review take that into account?

[Lord Faulks]

The decision to apply for a certificate is, of course, an intensely personal one. What is important is that a prisoner, or indeed anybody, should know that they have the right to do so—but it would be entirely inappropriate to in any way place pressure on somebody to go through that process. The matter is one that the Act rightly treats with great care in terms of protection of data and all the sensitive matters that it is necessary to take into account when making a momentous decision of this sort.

Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015

Lord Faulks Excerpts

Monday 23rd November 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

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

I beg to move that the Committee has considered the draft Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015.

The statutory instrument before us today amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to specify the merits criteria that must be met in order to qualify for civil legal aid for applications for post-adoption contact. This statutory instrument also makes amendments to the Legal Aid (Information about Financial Resources) Regulations 2013—the information regulations. The amendments provide that the director of legal aid casework at the Legal Aid Agency may make an information request to the relevant Secretary of State to find out whether a legal aid applicant is in receipt of direct payments for special educational needs or direct payments under Section 17A of the Children Act 1989. That information is relevant for the purposes of the means assessment that the director must carry out.

Orders for post-adoption contact were introduced by the Children and Families Act 2014, which inserted Sections 51A and 51B into the Adoption and Children Act 2002. Applications can now be made for a post-adoption contact order when the court is making an adoption order or when an adoption order has been made. These provisions came into effect on 22 April 2014. The Children and Families Act 2014 also amended Part 1 of Schedule 1 to LASPO. This means that legal aid may be available for any application for post-adoption contact where the person applying for legal aid provides evidence of domestic violence or child abuse or where they are a child who is a party to the proceedings.

Why is this necessary? As I have already mentioned in this Committee today, the merits criteria regulations set out the merits criteria that must be applied by the director of legal aid casework at the Legal Aid Agency when determining whether an applicant qualifies for civil legal services under Part 1 of Schedule 1 to LASPO. Regulation 2 of the merits criteria regulations sets out the interpretation and definition of terms used within those regulations. This instrument adds certain civil proceedings in relation to post-adoption contact orders to the definition of “private law children case”. As a result, the merits criteria which apply to such proceedings when determining an individual’s eligibility for legal representation will be those set out in Regulations 64 and 68. This means that some elements of the standard merits test will not apply, such as the requirement for the case to be unsuitable for a conditional fee arrangement.

Separately, Regulation 69 of the merits criteria regulations sets out the criteria for determinations for legal representation in relation to family cases to which specific merits criteria apply, other than those specifically provided for elsewhere in the merits criteria regulations. The amendments made by this instrument will also exclude from the scope of Regulation 69 determinations in relation to certain post-adoption contact order proceedings. This exclusion is necessary because, as I mentioned, the applicable criteria for such matters will be those in Regulations 64 and 68.

--- Later in debate ---

[Lord Bach (Lab)]

My Lords, I again thank the Minister for his clear outlining of both parts of this regulation. I must tell the Committee that we, on behalf of the Opposition, welcome this regulation in both its parts. It is slightly worrying for the Opposition to agree to two regulations, one after the other, concerning Part 1 of LASPO. The Minister knows very well that we think LASPO has been an absolute disaster, certainly as far as Part 1 is concerned and as forecast by many Members of this House.

However, this is not the occasion to debate Part 1 of LASPO in general terms. I know the Minister will be looking forward as much as I am to the debate on Thursday 10 December on the future of legal aid—it is something he may not be aware of, but it will be a thrill for him to come to it. These regulations seems perfectly sensible. We have taken some advice on the effects of the two parts and they seem extremely sound. We are happy to support them.

[Lord Faulks]

I am very grateful to the noble Lord for his comments on the two parts of this statutory instrument. I look forward to the debate on 10 December —it comes as news to me, but no doubt I would have been informed in due course—if I am lucky enough to respond to that report on the Government’s behalf. I know that the noble Lord has been assiduous in his opposition to Part 1 of the LASPO Act. I noticed that he did not mention Part 2, to which there was also opposition, but that seems to have rather faded away. However, that is a debate for another day and we look forward to engaging in it.

In the mean time, I respectfully say to the Committee that the instrument makes important and necessary amendments to the merits criteria regulations to ensure that legal aid will continue to be provided in any case where refusal would be unlawful. It does so while maintaining the underlying purpose of civil legal aid eligibility criteria and the legal aid scheme, which is to ensure that the limited legal aid budget is directed at the cases that most justify public funding. I therefore commend the statutory instrument to the Committee.

Motion agreed.

Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015

Lord Faulks Excerpts

Monday 23rd November 2015 Grand Committee

Moved by

[Lord Faulks]

--- Later in debate ---

Relevant document: 5th Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument)

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

My Lords, the statutory instrument before the Committee today amends the Civil Legal Aid (Merits Criteria) Regulations 2013, known as the “merits criteria regulations”, so that legal aid funding can be provided in some cases where the prospects of succeeding are below 50% but where legal aid funding is required under the European Convention on Human Rights or EU law. These changes have been made to reflect the findings on the legal aid merits test made by the High Court in the recent case of IS.

While this judgment is under appeal—I have had an indication that an appeal will be heard on 25 or 26 April next year—the Government consider it important that these amendments are brought into force without delay to provide a means by which the Legal Aid Agency is able to comply with the judgment in the interim. Failure to make such a change promptly would have resulted in an extended period in which the Legal Aid Agency might in some cases either have taken an unlawful decision or indeed have been unable to take any decision. For these reasons, and owing to limited parliamentary time, the statutory instrument before us was made and brought into force using the urgency procedure provided for under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The merits criteria regulations set out the merits criteria that must be applied by the Director of Legal Aid Casework at the Legal Aid Agency when determining whether an applicant qualifies for civil legal services under Part 1 of Schedule 1 to LASPO. Broadly speaking, these criteria provide the basis for deciding whether it is justified to provide, or to continue to provide, public funds in an individual case. The factors to be considered are similar to those that would influence a privately paying client of moderate means when considering whether to become involved in proceedings.

Why are the Government taking this action? The merits criteria regulations include a number of different requirements, including a prospects of success test for an application for full representation. When the prospects of success test applies, the regulations generally prevent the Legal Aid Agency funding any case where the prospects of success are below 50%. Had the merits criteria regulations remained unamended, the director would therefore have been placed in something of a bind. Refusing legal aid in some cases would have been an unlawful decision as, on the High Court’s findings, it might have resulted in a convention breach. While the Legal Aid Agency could have sought to delay non-urgent decisions, we did not think it would be reasonable to await the outcome of the Government’s appeal in this matter, which may not be known for some time. Even though the hearings are in April, there may well of course be some delay in producing a judgment.

The amendments made by this instrument mean that, in cases where an application for full representation is subject to an assessment of its prospects of success, legal aid may now be provided for some cases assessed as having “borderline” or “poor” prospects of success. The director will need to be satisfied that it is necessary to determine or, in the case of a risk of a breach, appropriate to determine that the prospects of success test is met in order to prevent a breach, or the risk of a breach, of the legal aid applicant’s rights under the convention or enforceable EU rights.

A discrete point arises. The Joint Committee on Statutory Instruments, or JCSI, has expressed its views on the clarity—or, more accurately, the lack of clarity—in respect of the transitional provisions in the SI. I apologise to the Committee for any confusion that may have been engendered; the department intends to develop a revised drafting approach—resulting, I hope, in greater clarity—to be used in future that is more closely targeted at solely those cases that begin before commencement. However, we consider that the transitional provisions in this instrument still operate to achieve the policy intention.

This instrument makes important and necessary amendments to the merits criteria regulations to ensure that legal aid will continue to be provided in any case where refusal to grant would be unlawful. It does so while maintaining the underlying purpose of the civil legal aid eligibility criteria and the legal aid scheme—that is, to make sure that the limited legal aid budget is directed at the cases which most justify public funding. I therefore commend this statutory instrument to the Committee, and I beg to move.

[Lord Bach (Lab)]

My Lords, I shall be extremely brief. I thank the Minister for his very clear outlining of these regulations. I can tell him and the Committee at once that the Opposition do not oppose it—indeed, we support it. I thank him for his generous apology regarding the points made by the JCSI. The regulations are clearly a sensible step for Her Majesty’s Government to have taken following the High Court judgment. The Government are appealing that decision, and we are grateful to the Minister for telling us the date. I gather that it was a fixed date for the hearing. The Minister and I know that those dates can change, however fixed they may or may not be. If the appeal is unsuccessful, will it be the Government’s intention to change the criteria by legislation? Our advice, for what it is worth—and if the Government are interested in any way—is not to do so. We welcome the regulations.

[Lord Faulks]

I am grateful to the noble Lord for his observations and for the advice that he so generously offered on behalf of Her Majesty’s Opposition. Of course, depending on the outcome of the case, one side or another might consider it necessary to pursue the matter further to the Supreme Court, were permission to be obtained, but in due course a decision will follow that judgment and we will decide whether or not to proceed with the matter.

I have been given an amended date, I am afraid to say. I wrongly informed the Committee that it was April, but the better news is that it has been brought forward: the date is now 21 or 22 March 2016, but of course that will be subject to the provisos so accurately identified by the noble Lord, Lord Bach.

[Lord Bach]

If we allow this to carry on for a bit longer, do you think that the date may get closer and closer?

[Lord Faulks]

I am grateful for that interruption. Who knows? But we are at least moving in the right direction, I am glad to say.

I am grateful for the general acknowledgement of the sense of these regulations, and I thank the noble Lord for that. I believe this to be an appropriate instrument that makes the necessary amendments to the merits criteria regulations in order to comply with the judgment pending the appeal.

Motion agreed.

Human Rights: UK Application

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what steps they are taking to ensure that fundamental rights apply equally in all parts of the United Kingdom.

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

My Lords, the Government are committed to protecting human rights. There is already some variation across the United Kingdom, as the devolved Administrations have competence to legislate in respect of human rights in the policy areas devolved to them. The Government were elected with a mandate to reform the UK’s human rights framework. We will consider the implications for devolution of a Bill of Rights as we develop our proposals and will fully engage with the devolved Administrations.

[Lord Lexden (Con)]

Why should my gay friends in Belfast be denied the right to marry one another if they wish to do so, while my gay friends in London can exercise that right? The first civil partnership in the United Kingdom took place in Belfast, but a same-sex marriage is impossible there. Has the time not come to review the scope and extent of the so-called Sewel convention, under which this wholly unfair state of affairs has arisen? While we are about it, do we not need a new name for the convention?

[Lord Faulks]

I will gracefully decline to answer the last part of the noble Lord’s question. As to the first part, the position is that this Government, and indeed this Parliament, were pioneers in passing the same-sex marriage Act. Since then, the Republic of Ireland has followed suit, the American Supreme Court has accepted the argument, and the European Court of Human Rights has also. We can be proud that we have set the way. We also commended it to the Northern Ireland Executive, both before and after the passing of the legislation, but ultimately this is a question of devolution. The Northern Ireland Executive are capable of making that decision themselves. The matter is the subject of two judicial reviews. At the moment, there is no inclination on the part of the Northern Ireland Executive to take matters forward, and I hope that that changes.

[Baroness Whitaker (Lab)]

My Lords, does the Minister agree that the human rights of Gypsies and Travellers are much better protected in Wales than in England because the Government have created an obligation on local authorities to provide sites? Why can we not do the same thing here?

[Lord Faulks]

The noble Baroness has particular expertise and knowledge of this area, and I defer to her knowledge, as it were, on the ground. The application of the law in relation to human rights should of course be common across England and Wales.

[Lord Trimble (Con)]

My Lords, I draw the Minister’s attention to the Dudgeon case, which concerned the legalisation of homosexuality. Mr Dudgeon was from Northern Ireland, where homosexuality was still an offence when it was not an offence elsewhere. He went to the European Court, which held that human rights must be uniform throughout the country. I think that that might be relevant here, too.

[Lord Faulks]

The question of uniformity is difficult. Although the European Court of Human Rights maintains certain core standards, it nevertheless acknowledges a margin of appreciation for all members of the Council of Europe. We may well feel that some countries respect these better than others, but unless there is a violation of a convention right, that is a matter for the individual country.

[Lord Dubs (Lab)]

My Lords, it is many years since the Good Friday agreement. Surely the British Government have an obligation as regards a Bill of Rights for Northern Ireland. Have not we dragged our heels for far too long? I know that there are difficulties among the parties, but surely the British Government should take the initiative.

[Lord Faulks]

Once again, the question is not exclusively for the British Government. While the British Government are anxious to see the protection of human rights here, in Northern Ireland and in Ireland as a whole, it is also a matter for others.

[Lord Lester of Herne Hill (LD)]

Will the Minister please confirm to the House that the Secretary of State has the power under Section 26 of the Northern Ireland Act to give direction to the devolved institutions in Northern Ireland to secure their compliance with the European Human Rights Convention? If he does confirm that, will he tell us whether the Secretary of State has thought about exercising that power so as—to take the example given already about marriage, or perhaps the example of defamation or blasphemy—to secure full compliance in the Province with the obligations under the convention?

[Lord Faulks]

I am extremely hesitant to answer a question of law from the Dispatch Box. That is a matter that I will consider and write to the noble Lord about. It is a matter of concern for the Secretary of State and I am sure that it will continue to be, as it is for the Ministry of Justice as a whole.

[Lord Bew (CB)]

My Lords, does the Minister acknowledge that public opinion in Northern Ireland on this matter is changing rapidly? A few months ago, the Assembly voted on it, and there was a narrow vote against change. Very recently, there was a narrow vote for, which fell on a technicality. There will be a general election shortly, which will change the composition of the Assembly. Does the Minister agree that it may be better to leave this for the normal process of public opinion in Northern Ireland, which is moving very much in the same direction as public opinion in the Republic? Might this not be better than at this point raising issues such as Article 14 of the Strasbourg convention, which drove reforms on this issue in the past in Northern Ireland and could do so again? At this point it might solve itself naturally.

[Lord Faulks]

I am very grateful to the noble Lord. I have followed and been told about the progress at the moment and the fact that it was by only a narrow vote that the matter did not progress further. I think there may be something in what the noble Lord says about allowing the matter to develop and hope the solution will come without the rather more draconian measures which have been suggested.

--- Later in debate ---

[Lord Goldsmith]

It is good to hear from the noble Lord the commitments to human rights and also, particularly, what he said in answer to the noble Lord, Lord Lexden. There is a more basic problem, as the noble Lord will know, even more so than that of same-sex marriages, which is the criminalisation of homosexuality in certain parts of the world. What can the Minister say about the British Government’s persuasion of other countries, particularly Commonwealth countries, to get rid of the criminalisation of homosexuality and treat people decently in that respect?

[Lord Faulks]

The Government maintain their firm resolve to do all they can to protect human rights, both here and abroad. It is a tradition which precedes this Government; it was part of the coalition Government’s policies and, indeed, those of the previous Labour Government. Nothing about any changes we might wish to make to the domestic arrangements has in any way diminished our enthusiasm or determination in that area.

[Lord Forsyth of Drumlean]

My Lords, is my noble friend aware of the extraordinary proposals by the Scottish Government to require a state guardian to be appointed for every child born in Scotland in order to ensure that parents are adequately looking after their children? Could he tell us what happens when those families move south of the border? Will that continue?

[Lord Faulks]

I am afraid that I am not seized of that particular issue, but I do know that in Scotland there are a number of different interpretations of what needs to be done in order to respect individual human rights. Some of those approaches vary considerably from the approach that we might take in this country. That is a feature of devolution.

Restorative Justice

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw attention to my interests as a former chair and a current trustee of the Thames Valley Partnership, which manages restorative justice in the Thames Valley Police area.

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

My Lords, there has been no formal assessment to date. However, the Ministry of Justice is aware of the progress that police and crime commissioners are making in developing and delivering restorative justice services and is offering advice and guidance where necessary. The recently announced Justice Select Committee inquiry into restorative justice will help to provide a comprehensive picture of restorative justice across England and Wales.

[Lord Blair of Boughton]

I thank the Minister for that Answer, particularly in national Restorative Justice Week. I congratulate the Government on their interest in restorative justice and on the amount of money they have transmitted to police and crime commissioners for restorative justice services. As far as I know, restorative justice is the only criminal justice intervention which has been proved to be effective through random control trials, in the same way as medical research, in assisting victims to recover and reducing reoffending. However, there are persistent and widespread accounts of RJ services facing difficulties and delays in obtaining victim contact details from police and the courts. Without this, RJ simply cannot work. What are Her Majesty’s Government going to do to clear this blockage?

[Lord Faulks]

My Lords, to clear the blockage, apart from other steps, the new victims’ code, which was published two days ago, now requires the police to pass on victims’ details to RJ service providers unless asked not to do so—in other words, an opt-out. This is in line with the mechanism for referral for other victims’ services. We are working with the Association of Policing & Crime Chief Executives to ensure that its toolkit on information sharing is up to date and are making connections between areas where there is good restorative justice take-up and other areas where there is not such a good take-up.

[Lord Cormack (Con)]

My Lords, have the Government taken carefully into account the experience of Northern Ireland, where there have been some remarkable schemes over the last decade or more?

[Lord Faulks]

The Government are aware that there are a number of schemes, in not only Northern Ireland, but Australia, New Zealand and parts of North America. There is no standardised way of delivering restorative justice but the Government are committed to continuing this as a significant way of improving reoffending rates and providing victims with a reasonable involvement with the criminal justice system.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the MoJ is to be congratulated on its action plan produced by the coalition Government and on promoting Restorative Justice Week. There is strong evidence that restorative justice programmes can be effective in prisons as well as in the community, and Sycamore Tree has been running programmes in 40 prisons. Will the new prisons built to replace existing outdated ones have the facilities necessary to run restorative justice programmes, and in surroundings that are sympathetic to victims, who are central to restorative justice?

[Lord Faulks]

The noble Lord is right that restorative justice is provided in a number of settings, including in prisons. Of course, the new prison plans are somewhat in their infancy at the moment but I am sure that the Secretary of State will have well in mind the desirability of maintaining this tradition.

[The Lord Bishop of Worcester]

My Lords, does the Minister accept that, whatever the statistics regarding effectiveness, for those who participate in it restorative justice is a profoundly affecting experience? I have witnessed the restorative justice programme in HM Prison Hewell in my diocese, and for all concerned—particularly for members of the community—it is a deeply affecting experience which is profoundly for the common good.

[Lord Faulks]

I am grateful to the right reverend Prelate for that contribution. The statistics show 85% overall victim satisfaction and a 14% reduction in reoffending. These things have to be approached very carefully because of course not all victims want to be involved in it and they must be allowed to pull out at the last moment if they so wish. However, the take-up is remarkable.

[Lord Ramsbotham (CB)]

My Lords, I once attended a restorative justice conference at a prison which was spoiled because, at the end of it, the prison governor admitted that he was unable to deliver any of the programme that had been outlined by the admirable police chairman of the commission. Can the Minister assure the House that prisons have been instructed that it is essential that they provide all the necessary support for restorative justice programmes to make certain that they are effective?

[Lord Faulks]

I will of course pass on that concern to the Prisons Minister. I assure the noble Lord that the standards for restorative justice are set out in the victims’ code, and the necessary trained facilitation and all the necessary support should be present.

[Lord Beecham (Lab)]

My Lords, it is some eight years, I think, since the publication of the last report validating the success of the restorative justice programme. Since that time, I believe that the Howard League for Penal Reform has made an annual award to schemes covering respectively adults and young offenders. Is it possible for the Government now to look at ways of supporting that kind of approach in order to promote the scheme and perhaps invest in it, given that the likelihood is that the development of restorative justice will cause savings to be made in the custodial system and indeed in the judicial system?

[Lord Faulks]

The Government are well aware of the advantages of restorative justice and in fact they have contributed to it very considerably, with £30 million having been made available to RJ services for victims over the last three years. Of course, the noble Lord is right to draw attention to the Howard League’s contribution. There have been contributions from all sorts of providers in different fields.

[Lord Elton (Con)]

My Lords, as I recall, the initial pioneering effort was made by the Thames Valley Police Authority, which deserved great credit for that. Do any police authorities not provide restorative justice services at present?

[Lord Faulks]

My noble friend is right to single out the Thames Valley Probation Service, and the noble Lord, Lord Blair, is intimately concerned with that. All police and crime commissioners have been provided with funds, although the take-up has varied between authorities. As I indicated in answer to an earlier question, it is important that best practice is shared among the various areas.

European Union Referendum Bill

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I, too, congratulate my noble and learned friend Lord Goldsmith on raising his excellent report. It will help us in future debates because not only did he touch on this subject, but he went through all the definitions of citizenship. The issue has arisen over a number of years because there was a separation between being a British passport holder and having the right to reside in Britain. That complication grew historically from our imperial past. The issue here is that we have a report that recommends something in principle that most of us would agree with but, as the noble Lord, Lord Hannay, said, that is not what this amendment is attempting to do. In his report, my noble and learned friend made it clear that there should be transitional arrangements. Simply put, people residing here should not have the vote taken away. This amendment will, in effect, say to people who reside here and have the right to vote here that they will no longer have the right to vote in a referendum because of the date of the referendum. We cannot accept this amendment, even though there may be principles in it that are worth consideration, because it would be wrong. Someone mentioned extending the franchise. This is about not extending the franchise but taking it away from people who already have it. That is why we cannot possibly support it.

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

My Lords, this has been a short but informative debate. This is the first of a number of amendments concerned with the franchise, the majority of which are concerned with extending it. This amendment is concerned with restricting the franchise. It was considered in a different form, but it is in principle the same and is about whether Commonwealth citizens should be excluded from the franchise. I take the qualification of the noble Lord, Lord Green, that it would be if those Commonwealth citizens are not British citizens. In this amendment he has specified that should the referendum be held on or after 1 January 2017, Commonwealth citizens who are resident should not be eligible to vote, so if the referendum takes place before then, the existing Westminster franchise should pertain. The amendment would have the same effect for Commonwealth citizens in Gibraltar.

Noble Lords will be aware that the franchise for this referendum is based on that used for parliamentary elections, but I reiterate that it includes Commonwealth citizens who are citizens of a country mentioned in Schedule 3 to the British Nationality Act 1981—there is quite a number of countries—so long as they are resident in the United Kingdom. It is worth emphasising those words. As I have emphasised in previous debates, the Government think this is fair and consistent with the precedents taken from previous referendums. This franchise was used in the alternative vote referendum in 2011, and it is the franchise that was set out in the European Union Act of that year. Noble Lords will remember that a referendum would have been triggered in the event of the transfer of powers or competence to the European Union.

As I have said to the House before, “Commonwealth citizen” is a broad term. It is set out in Section 37 of the British Nationality Act. It includes British citizens as well as those who hold other types of British nationality, including British overseas territories citizens, British subjects and citizens of those countries listed in Schedule 3 to the Act. In order to be entitled to be registered in the register of parliamentary electors, Commonwealth citizens must have leave to enter the UK or to remain under the Immigration Act 1971 or must not require such leave. While in many democratic countries eligibility to vote is based on citizenship, I set out in Committee that it is our historical ties with Commonwealth countries that justify this approach.

The noble and learned Lord, Lord Goldsmith, addressed your Lordships’ House with reference to his report, which was indeed cited in Committee. He assisted the House by explaining that he was asked to review the difficult question of British citizenship, and that the quotation perfectly reasonably relied upon by the noble Lord, Lord Green, had to be seen in the context of a general review of what it meant to be a citizen and what, if anything, we should do to clarify the nature of citizenship or to record it. It is correct, as was elucidated during his remarks to the House, that he suggested that if the franchise were to be restricted to British citizens then those with an existing right to vote should have that phased out. I respectfully adopt the point made by the noble Lord, Lord Hannay, that what is contained in the amendment is really not a phasing out; it is effectively a guillotine, albeit a somewhat delayed one—a sword of Damocles, as it were.

[Lord Hamilton of Epsom]

Does the Minister intend to do anything about the report by the noble and learned Lord, Lord Goldsmith, or is it just going to gather dust?

[Lord Faulks]

I would like to be able to assist my noble friend and say that there are specific plans—I am sure that at this time the question of citizenship above all else will be a matter well in the mind of the Government—but I cannot pretend that there are any immediate plans that I am aware of to implement the suggestions made by the noble and learned Lord.

I should add that on occasions when Parliament has considered the issue of Commonwealth citizens’ voting rights, it has taken the view that the situation should remain as it is at present. We consider that this referendum is not the place to address the franchise issue again. While the amendment rightly acknowledges that it would take time to implement a change to the franchise by stating that this would apply only if the referendum were to be held on or after 1 January 2017, I am sure noble Lords will agree that Commonwealth voting rights ought to be considered as a matter of principle, not merely as a happenstance of date, to answer the point made by my noble and learned friend.

[Lord Forsyth of Drumlean]

On the point about the happenstance of date, does the Minister think it reasonable that someone could just have arrived in this country and after as long as it took them to get on the register, which would be a matter of days, they would then be entitled to vote in a referendum that is of such crucial importance to our country?

[Lord Faulks]

If they are resident in this country then they are entitled to vote. Of course in an extreme example, which I think is probably unlikely to happen, someone could arrive and then immediately attempt to register, however long that might take. However, I respectfully suggest that we cannot require those who are entitled to vote to remain in this country for a specific time before they become entitled to vote in the way that Parliament has hitherto always decided that they should be allowed to. I respectfully suggest that this is not the moment to change that franchise. Whatever may or may not be considered appropriate to do by changing the nature of citizenship or endorsing the importance of it, this amendment is not an appropriate vehicle to bring that about, nor to change the franchise. In those circumstances, I urge the noble Lord to withdraw his amendment.

[Lord Green of Deddington]

My Lords, this matter has now had an airing and a response. I am grateful to those noble Lords who have contributed to that, especially to the noble and learned Lords, Lord Goldsmith and Lord Mackay of Clashfern. The only point that I would challenge in what has been said is the question of the guillotine, or of taking away something that people have. That would be the eventual effect but let us be clear that they would have a year in which to become British citizens, so it would be their decision not to become British citizens that would mean they could not vote. However, I think we have had the debate. It is now clear that all three parties are opposed to these amendments, and there are other matters to be pursued. Accordingly, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Faulks]

My Lords, Amendment 3, in the name of the noble Baroness, Lady Morgan, would extend the referendum franchise to 16 and 17 year-olds in the United Kingdom. As I think a number of noble Lords will appreciate, the amendment is incomplete, because it would not enfranchise 16 and 17 year-olds in Gibraltar and does not make provision for the technical legislation and time-consuming operational work that would be required to register these young electors. The question of principle, however, has been roundly debated in Committee and here today. There has not been a great deal of agreement, but I hope that there may be some agreement about the House that it is essential that this referendum should be seen to be fair—and that it should be fair. We should avoid any action that could be seen as some attempt to push towards a particular outcome. That is a significant reason why, with the small changes to enfranchise Gibraltar electors and Peers, both of whom are already entitled to vote in certain elections, the Bill adopts the parliamentary franchise. We want to avoid any allegations of interference and we fear that changing the franchise, including this particular change, could be seen as doing exactly that and could seriously undermine the legitimacy of the referendum.

Much mention has been made of the Scottish independence referendum: how that came about, whether it was opportunism by the SNP, or whether the Conservative Government were somewhat asleep on the job. It took place, and noble Lords have pointed to it and suggested that we should learn a great deal from it. However, just as the franchise used in Scotland was a matter for the Scottish Parliament to determine, I suggest that the franchise for elections and referendums that affect the whole of Great Britain and Northern Ireland is a matter for this Parliament to decide. As I am sure noble Lords would accept, a decision of the Scottish Parliament does not and should not prevent this Parliament taking a different approach; the example of Scottish guardians is a particularly vivid illustration.

During the course of this debate there was an interesting use of the concept of a precedent. It is said that this referendum is exceptional, and in one sense it is. However, at the same time the argument seems to be that the decisions of the Scottish Parliament after a referendum involving 16 and 17 year-olds provide a clear precedent and indicate that the franchise should be lowered for this referendum. Yet apparently, as I understand it, the Labour Party will not argue that this will therefore lead to any proposed change in the franchise for a general election. This sits rather uneasily with the argument in Committee, which was, essentially, that the genie was out of the bottle and that once you had allowed 16 year-olds to vote in the Scottish Parliament, the argument was all over. I suggest that we need to look at the argument carefully to consider whether it is right for this country.

Noble Lords have pointed to the difference, but surely, devolution by its very nature gives rise to the possibility of difference. It does not mean that we should necessarily harmonise. The fact that people may do certain things in Scotland aged 16—get married without parental consent, formally change their name, access their birth records if adopted—does not mean that the same rules must or should apply across the United Kingdom.

It is said, correctly, that the poll is exceptional and will affect 16 and 17 year-olds for longer. Noble Lords have suggested that, because the vote will—or should, in view of what the Prime Minister has said—affect everybody in this country for the rest of their lives, that means that 16 and 17 year-olds ought to have a say. But of course, without being frivolous in any way, it follows that 14 and 15 year-olds will have to live with the outcome for longer, and no one is seriously suggesting, except in order to illustrate the argument, that they should be allowed to vote.

We heard about the response of most democracies to the voting age. It is 18 in all the countries in the European Union except Austria. I leave aside Cuba and other interesting examples of democracies. It is also the voting age that has been applied in other exceptional circumstances. In 2011, when the public voted in a referendum with similarly lasting constitutional significance—namely, the voting system used to elect Members of the other place—where was the cry for 16 year-olds then?

Does the decision that we will make with this referendum outweigh in importance all other decisions that Parliament comes to? I suggest that the answer is: not necessarily. For example, there is the decision that in England all those under 18 must be in education or training, yet we do not allow individuals under 18 years of age to participate in parliamentary elections. We have to draw a line somewhere where the voting age is concerned, and I accept that there is always an element of arbitrariness about it. However, arbitrary though it is, it is one that hitherto has generally received approval.

It is said that young people have shown signs of engagement and political activity—for example, in the Scottish referendum—and that this indicates their readiness to vote. However, recent YouGov polling suggested that only 56% of 16 year-olds said that they would like to be able to vote, and that figure decreased to 42% of 17 year-olds and 36% of 18 year-olds. Using democratic engagement and the burst of enthusiasm that there seems to have been, or the lack of it, as the basis for giving or denying the vote would set a very odd precedent. There are of course many 50 year-olds who are not politically engaged, but that does not mean that we are going to disfranchise them. Simply lowering the voting age will not necessarily increase levels of democratic engagement among all young people.

I turn now to the complexity associated with the age of majority and the need to draw a line. Scientific study of the adolescent brain has yet to identify an obvious point at which we can distinguish between adolescents and adults. There is a considerably held view that it is not until the age of 25 that the adult brain reaches its ultimate state of maturity, so we look at the broader framework. A number of noble Lords, including my noble friends Lord Ridley and Lord Blencathra, did not think that at 16 young people were ready to vote. The noble Earl, Lord Listowel—few have more concern about and knowledge of 16 and 17 year-olds—also took that view.

We should not underestimate the gravity of voting. One can say that it is all great fun, we can join in and it is good to enthuse, but it is a huge responsibility. It is a momentous occasion for every individual, and of course a 16 year-old, given the chance to vote, will and should take it very seriously. However, we have to ask ourselves whether, in our desire to enthuse 16 and 17 year-olds, we may be in danger of placing too great a responsibility on them.

[Lord Morgan (Lab)]

My Lords, is it not extraordinarily patronising to young people to suggest that they will somehow regard voting as being like a university rag and not a serious intellectual and civil responsibility?

[Lord Faulks]

That is precisely the point that I am not making. The point I am making is that they will not, and should not, regard it trivially. The question is whether it is appropriate for us to burden them with a responsibility which they will no doubt take seriously. It is not a question of simply saying, “This is a good thing for them to do. Therefore, we should grant them that right”.

[Baroness Thornton (Lab)]

A person’s mental ability has never been taken into account when considering their right to vote, so is the noble Lord getting on to dangerous ground here? People who lack mental ability still have the right to vote. Surely he is not saying that they should not have the right to vote because they may not have that maturity.

--- Later in debate ---

[Lord Faulks]

The noble Baroness is right in the sense that we do not assess mental capacity before deciding whether somebody might vote. That is correct. However, when we take the difficult decision on where to draw the line—on whether the voting age should be 18, 16 or 21—we are entitled to inform ourselves generally about individuals’ state of development to see generally what a typical adolescent might be like.

[Lord Tyler]

Will the noble Lord tell us whether he has seen the film “Suffragette”? The argument that he has just been advancing was the argument for not giving women the vote until after the First World War and then for not extending it to those under the age of 28. Those arguments were deployed by his contemporaries, as it were, of that period.

[Lord Faulks]

I am afraid that I have not had enough time to see the film, but any argument about where you draw a line could be simply dismissed as one that has been used hitherto in different circumstances. I am concerned about whether giving these particular young people the vote is appropriate.

[Lord Lester of Herne Hill (LD)]

I am sure that the noble Lord does not wish to be offensive but the last time I heard arguments about brains and capacity was in Jackson, Mississippi, with the Ku Klux Klan showing me charts of the average Negro brain compared with a white brain. Does he not realise that arguments of that kind are deeply offensive?

[Lord Faulks]

I resent the noble Lord’s suggestion. We are engaging in an argument about whether to lower the voting age. Seeking comparisons with the Ku Klux Klan is entirely inappropriate and I reject it.

[Lord Forsyth of Drumlean]

On the point about suffragettes, would it be worth reminding the Benches opposite that it was Asquith and Lloyd George who consistently denied women the vote, the reason being that they thought it would upset the men and lose votes. That was exactly the kind of opportunism that we are seeing here today from the Liberal Benches.

[Lord Faulks]

I said at the beginning of my remarks that I did not think it was appropriate to try to guess how 16 and 17 year-olds would vote. In fact, it would probably be a mistake even to begin to speculate—we would probably be wrong about it. Although I am grateful for the interruption, that is not the issue that I am trying to engage upon.

[Baroness Crawley (Lab)]

Does the noble Lord accept as fact that this cohort of 16 and 17 year-olds is extremely mature and culturally aware? More than 45% of young people in this cohort will go to university or on to further education, whereas 60 years ago 5% of them did so. We have an extremely developed and mature 16 and 17 year-old cohort.

[Lord Faulks]

I am afraid that I cannot accept facts baldly stated—engagingly stated though they are. The answer is that many more people than before are being educated, and it is a different debate as to whether this is appropriate—

[Baroness Crawley]

My Lords—

[Lord Faulks]

Perhaps I could have a chance to answer the question first.

[Baroness Crawley]

Would the noble Lord accept the facts from the House of Commons Library?

[Lord Faulks]

I am not sure that it is going to enlighten the House very much if we try to decide how well educated or not well educated these young people are. One of the arguments was that young people spend a great deal of time on the internet or go travelling. The answer is that some 16 and 17 year-olds are extremely intelligent and well informed; others are not. The bigger point is whether, looking at them as a cohort, they have changed radically since, for example, Parliament considered this matter in the round in debating the Representation of the People Bill.

[Lord Blunkett (Lab)]

This is my first ever intervention and I ought to explain to the House that I am a convert to the idea of 16 and 17 year-olds being able to vote. The great benefit regarding this particular cohort is that at least many of them, although not as many as I would wish, will have benefited from citizenship education in school, which is more than can be said for the vast majority of the population.

[Lord Faulks]

I am honoured to have been intervened on by the noble Lord, and I hear what he says.

I was endeavouring to address the House on the Representation of the People Act 1969, which was brought in by the party opposite when it was in power. At that stage, the question was whether to lower the voting age from 21 to 18. The debates in this House ranged over the issues that one would expect. Often, amendments were put forward suggesting that it be lowered only to the age of 20. There was no suggestion that it should be lowered to the age of 16. What has changed so fundamentally about adolescence between then and now?

[Baroness Young of Old Scone]

I can tell the Minister what the difference is between then and now. The difference is that, now, we have a well-fed, well-educated set of 16 and 17 year-olds who are vastly more mature than I was at that age, and that was 40 years ago. Let us get on with the present.

[Lord Faulks]

Let me turn to something that may excite the party opposite slightly less, which is the question of what may happen in practical terms if there is a change of franchise. The noble Baroness, Lady Morgan, said that with a fair wind these matters could easily be accommodated—I hope that she will forgive me if I summarise what she said. The noble Lord, Lord Tyler, was, I think, suggesting that I had in some way misquoted the Electoral Commission, but I do not think that that is a fair accusation. Let me make entirely clear what the Electoral Commission said in its publication yesterday. The commission states that it is not the case that there must be a 12-month period between a change to the franchise and the referendum, or indeed any fixed period. Reports in the media that refer to the 12-month period are incorrect.

I ask the House’s indulgence while I quote accurately one paragraph from that publication:

“It is important that Parliament is aware that if the annual canvass does not fall before the electoral event that a franchise change applies to, a key opportunity is missed to get the new group of voters registered. This does not mean, however, that other options are not available to help get as many voters as possible on the register in the available timeframe. Although the scale of the challenge presented by some of these options should not be underestimated—and it must be borne in mind that every voter is now required to register themselves individually—this does not mean that steps cannot be taken to reduce the risks presented by them with proper planning and funding”.

[Baroness Royall of Blaisdon (Lab)]

I just want to ask a factual question. Can the noble Lord say whether or not the annual canvass could be brought forward? I have no idea.

[Lord Faulks]

I have no idea of the answer to that question. The Electoral Commission will no doubt do its best, as I said in Committee, to follow what Parliament decides should be the franchise. It is also the case that, once the Bill receives Royal Assent, there are things that can be done, notwithstanding that there are various steps necessary to implement the legislation; for example, setting the referendum date and the start date. It is a very considerable undertaking involving a great many people.

I echo the point made my noble friend Lord Forsyth that being left off the register is considered a matter of considerable importance. Although there can be a campaign to increase awareness, there is a real risk that this matter would not be achieved in a satisfactory way, notwithstanding the willingness of the Electoral Commission to assist.

Legislation as momentous as this must command consensus in both Houses and the country as a whole. Reference was made to a recent amendment voted on in this House to the Cities and Local Government Devolution Bill to allow 16 year-olds to vote: that was reversed by the House of Commons yesterday by a substantial majority.

A change of this sort needs substantial legislation; it is a very important change. We have decided that the appropriate franchise is the one that has pertained satisfactorily in previous referenda and general elections, one that pertains in every country in the EU except Austria. There may come a time for change, when we lower the age to 16. There may be a debate to be had. This is not the moment for that debate.

[Baroness Morgan of Ely]

I thank noble Lords for participating in this debate. I have listened very carefully to the arguments put forward by the Minister and by others.

The one thing that we can all agree on is the need for us, at some point, to generally tidy up the inconsistencies around when young people are considered legally responsible for various aspects of their lives. But that is not the point of this amendment. Young people are the future of this nation. This is their one chance to have a say in this country’s relationship with the European Union. It is an exceptional case. They will have to live with the consequences of the result for longer than anyone. Let us show them that we have confidence in them, and that we respect them and their opinions. Let us give them a vote in the EU referendum.

I am not convinced by the arguments put forward by the Minister. Therefore, I would like to test the opinion of the House.

European Union Referendum Bill

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Baroness Morgan of Ely]

That is even fewer. That makes my point more eloquently. The point is, there was a huge drive to get these people to sign up and they did not take it up, although I think every one of those 100,000 has emailed me in the past few weeks to ask for this vote in the EU referendum.

The issue of citizenship and the responsibilities of citizens that my noble and learned friend Lord Goldsmith talked about earlier should be taken into account. In this country we have said time and again that we want to encourage people to integrate into their communities, to be a part of this society. It would therefore be inconsistent for us to suggest that, after 15 years in a country, they should not also be encouraged to become part of that society and to establish roots in their adopted lands.

There must be no question about the legitimacy of this referendum. We believe that there should be a cut-off point when people should lose their entitlement to vote if they have made their home abroad. We think that the current cut-off point of 15 years is about right. However, let me make it absolutely clear that there is no inconsistency in Labour’s position on this. The Conservative Government have said clearly that they want to see this extended. It is in their manifesto. They want British citizens who move abroad to be able to vote for ever. We do not believe that. When that Bill comes before this House we will oppose it.

I hope noble Lords will agree that there is, at least, a degree of consistency in the Labour Party’s position on this issue. We do not want to see this franchise extended beyond 15 years.

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

My Lords, the purpose of these amendments is to allow British citizens resident in other EU member states to vote in the EU referendum, regardless of the time they have been resident overseas. They would, therefore, lift the 15-year time limit on voting rights in the referendum for British citizens resident overseas, but only for those Britons resident in the EU. I have listened to the arguments put forward today and in Committee. I fear that, as with all the proposed changes to the franchise, the Government’s position remains the same.

I am, of course, sympathetic to the case. Indeed, as has been referred to, the Government are committed to getting rid of the 15-year time limit and have committed to bringing forward a stand-alone, dedicated Bill to provide for votes for life in due course. On the principle of removing the 15-year rule, therefore, I have no argument with the amendments. I can also understand the desire of British citizens who have been abroad for more than 15 years—whether they live in the EU, or within Europe in Oslo, in the point made by the noble Lord, Lord Grocott—to participate in the referendum. I appreciate that some will feel frustrated that they will not be able to participate. The other part of the 100,000 obviously sent their emails to me, rather than to the noble Baroness, Lady Morgan. They can argue that they might be affected by the vote, but I fear that that does not change the Government’s position on the franchise as a whole.

[Lord Hannay of Chiswick]

My Lords, there seems to be a perhaps excessive interest in the probably not very large numbers of British citizens who live in Norway. It might be worth recalling that, whatever the result of the referendum, they will not be affected. They live in a country in the European Economic Area, which is part of the single market. All their rights and privileges, and all the advantages they get from that, will remain with them whichever way we vote. That is what makes them different from British citizens in EU countries.

[Lord Faulks]

I am grateful for that interruption. The Government’s commitment is to votes for life for everybody, whether they live in the EU or elsewhere. The point is not in terms of their direct association with the EU, but whether they are British citizens who live abroad. Therefore, the point that I understood the noble Lord, Lord Grocott, to be making, which had some force, was that it is mere happenstance whether an individual lives in a country in the European Union or outside of it.

Removing the 15-year rule will be a complex and important constitutional change. It is not something that we suggest should in any way be rushed by way of a single amendment. It needs a whole Bill to be implemented properly—a Bill that plainly will be opposed by the party opposite. There are decisions to be taken. The media and the public should have a chance to scrutinise these changes. That is something of an echo of the argument I advanced unsuccessfully on the previous amendment. We will need to consider questions of potential fraud and how we should update the registration system. It is not something that should in any way be rushed through. This is just a small sample of the decisions that would need to be taken and implemented. Changing the franchise in this way is no small task. Giving effect to such a change would take a significant amount of time and resources in central government and in local authorities.

In many ways this is the most complex change to the franchise being proposed today. The group of people in question are almost by definition not known to us, as British citizens do not need to register when they move abroad. There are many, like the relations of the noble and learned Lord, Lord Scott, who will be well known and easily identifiable, but for many others it is difficult to have an adequate canvass. We could hardly go door to door, as electoral registration officials can in the UK. I entirely accept the contribution that many who live in the EU have made over a long period to Great Britain, as the noble Lord, Lord Lester, pointed out, although they have not hitherto taken part in general elections if they are outside the Westminster franchise. Verifying identities for others is a complicated task where a person has been away for at least a decade. For example, it might be difficult to prove that they have been previously resident in the UK.

These changes have to be made judiciously and carefully to ensure that the system remains transparent. My noble friend Lord Lexden said in Committee and again today that the Government should have started the process of the votes for life, which would, of course, incorporate this amendment. I know that is an issue close to his heart. I assure him and the House that the Government are committed to this change, but without knowing the date of the referendum I cannot, of course, guarantee that the change will be implemented in time. As I said, the decisions are complex.

I return finally to the point that I have made before. Indeed, I think it is one of the areas of common ground between this party and the party opposite at least. This process must be seen to be fair. There is clearly a view taken, as exemplified by the contribution of my noble friend Lord Hamilton, that a change of this sort may have an ulterior motive. I do not presume to guess how anybody is going to vote, whether they live outside the United Kingdom, outside the EU or whether they are under 18 or not. However, it is important that this should not in any way be seen to be some form of specially amended franchise so as to achieve a certain outcome. Nothing should undermine its legitimacy. The public might ask why we have made this change now just in time for the referendum. Should it not have been done as a much more careful stand-alone vote?

[Lord Liddle (Lab)]

I am a simple-minded chap but the Government are making a special change to the Westminster franchise to include citizens of Gibraltar to give them a vote in the British referendum. Presumably, the argument for that is that they are deeply affected by the result, as, indeed, they would be because their position in relation to Spain would become much more difficult were we to withdraw. But what about British citizens who have lived in the EU for a long time? The reason a lot of these people have gone to live there is because they were taking advantage of our EU membership. They see themselves as EU citizens as well as British citizens. What is the logic of excluding them if we are including the Gibraltarians?

[Lord Faulks]

The position is that British citizens are not able to vote in referenda in other European countries. This minor exception, which includes Peers and Gibraltarians who are members of the Commonwealth, is a very minor change to reflect that fact rather than to reflect the fact that Gibraltar happens to be in Europe and is part of the south-west area. I do not think it follows therefore that there should be an automatic change to the whole approach.

[Lord Hannay of Chiswick]

Before the noble Lord sits down—I think he is winding up—I do think it is a bit bizarre that we have got as far as the housemaid’s baby now. It is a very small baby—it does not matter very much. It is a change. However, the Ministry of Justice seems to be singularly ignorant of the role that British embassies, consulates and other diplomatic missions in the EU play. They have a duty of care to British citizens living in those countries. They know where a lot of them live—not, I am sure, all of them—and they have a duty of care. If those citizens are accused of a crime, they have to try to help them. So it is no good simply saying, “We don’t know where they all are. It’s a huge problem”. That is not actually the truth.

[Lord Faulks]

I would not dream of underestimating the role of British embassies and consulates around the world. They play an extremely valuable and continuing role. Nevertheless, it is asking a great deal of them—even of the most conscientious embassy—to be conscious of the whereabouts of all the various citizens living in countries outside the United Kingdom.

[Lord Lester of Herne Hill]

In a previous debate, the noble Lord talked about the mental capacity of adolescents to take part in elections and suggested that they might be mentally in some way less capable, or something like that. I hope that I do not put it too crudely. As regards the particular group we are discussing, is the problem that they are rather well informed because they have lived in other parts of Europe and have great experience? I have no idea how they will vote but at least they will be better informed than many Members of this House.

[Lord Faulks]

The noble Lord makes an entirely false point. The argument that I advanced in relation to an earlier group of amendments had nothing to do with mental capacity. In fact, I eschewed any reliance on mental capacity. I simply said that we draw an arbitrary line where adolescents are concerned—whether it is 16 or 18—and part of informing ourselves whether it is appropriate that they should vote involves looking at the development of the adolescent mind, without impugning in any way their capacity. I hope that I have made that position clear. As regards the capacity of those who are disfranchised by the current state of affairs, I do not at all wish to impugn their capacity or the level of their information or their ability to take a decision.

[Lord Kerr of Kinlochard (CB)]

I thank the noble Lord for giving way. I quite agree with him about the difficulties of drawing a line. Why draw a line, then, at 15 years?

[Lord Faulks]

Fifteen years is the line drawn by a previous Government, who thought that was a reasonable assessment of somebody who had a sufficient or recent connection with the country. Any line, whether it is 16 years or 14 years, is going to be arbitrary. Sympathetic though the Government are to the general tone of these amendments, for the reasons I have given I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Miller of Chilthorne Domer]

My Lords, I am very sorry that the Government have not followed the suggestion of the noble Lord, Lord Hannay, drawn a deep breath and thought again about this. I am afraid that there is no logic to the position laid out by the Minister. He admits that the line is arbitrary. He says that any change has to be considered and that more time should be taken over adopting it. In that case, the Government could have made the votes for life Bill a priority at the beginning of this Session. That is what they should have done if they believe in it. I am afraid that a lot of the EU expats listening to this debate will conclude that it is humbug as they will be disfranchised.

The noble Lord, Lord Bowness, put his finger on the matter when he said that it was about fairness. That is what it is. It is very unfair that the people we are discussing have been led to understand throughout their lives that being in the EU means being part of a network to which Britain belongs. Now, when Britain may make a choice to leave it, they have no say in that whatever. That position is unfair and, as the noble Lord, Lord Lexden, said, it is an accident of timing. This is an unfairness that the Government could have rectified. I will certainly not withdraw the amendment. I wish to test the opinion of the House.

--- Later in debate ---

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

My Lords, the amendment in the name of my noble friend Lord Hamilton of Epsom applies to individuals in the United Kingdom who are eligible to vote in the referendum but would not be eligible to vote in a parliamentary election. The amendment means that the Government would be unable to table draft regulations that set the date of the referendum until the Electoral Commission has certified that that group of eligible voters had received sufficient time to register to vote.

As my noble friend made clear, he was somewhat anticipating the result of the vote in this House in relation to 16 and 17 year-olds, and plainly had them in mind. I do not impugn his motives in tabling the amendment, although it is a rather late amendment—a starred amendment. As a result, the Electoral Commission has not had an opportunity to review it or to express an opinion. I question whether the commission would either welcome this suggestion or think it necessary. The commission’s role in referendums is set out in the Political Parties, Elections and Referendums Act 2000. It is to help to deliver and regulate certain conduct in the referendum. In the most recent briefing referred to in the House, the Electoral Commission once again made it clear that a change in the franchise is a matter for Parliament and that the commission’s role is to,

“advise on the practical indications of any such change”.

This amendment would fundamentally change the relationship that the Government enjoy with the Electoral Commission, giving the commission unprecedented power. Determination of who can participate in the referendum, and when it is to be held, is a matter for the Government and Parliament, and not a matter that should be transferred, directly or indirectly, to the commission, or indeed any other body.

As noble Lords will be aware, the regulations that will set the date of the referendum will be subject to the affirmative procedure. This is a safeguard that the Delegated Powers and Regulatory Reform Committee has deemed appropriate. To prevent Parliament from even considering the date of the poll until all newly eligible electors have had sufficient opportunity to register to vote is unnecessary. This is a process that can happen in parallel.

I think it entirely possible that this amendment could be read simply as an attempt to delay the referendum poll—that was the subtext of one of the contributions—but perhaps that is not fair. It is a poll that this Government have committed to holding before the end of 2017. There seems to be a suggestion that the Government should be getting on with it now, notwithstanding that this Bill has not gone through the normal parliamentary stages. Unfair though it may be, the Liberal Democrats are not quite as well represented at the other end of the corridor as they are at this end—so the result of the next round of this saga is not something that one can anticipate. I am sure that it is not seriously suggested that the Electoral Commission should be tasked to get on now with what may not be necessary, depending on the ultimate outcome of this Bill.

I have made it clear that the Government firmly believe that the franchise used for the referendum should be based on the parliamentary franchise; subject to further developments, there is to be a qualification on that, having regard to the vote that we had this afternoon. Once the legislation that will govern the referendum has been passed, the Government will then begin working with the Electoral Commission and local administrators straightaway. If a change to the franchise is to be made, we would need to ensure that newly eligible voters were aware of their right to vote and could register to do so. The Electoral Commission, as has rightly been pointed out, made it clear that there is no fixed period for implementation of a change. I corrected under the previous group of amendments the suggestion that 12 months must pass between legislation passing through Parliament to change the franchise, and the referendum itself.

The question is what should happen, and when, in relation to Royal Assent. If the referendum franchise is changed, the Government can start work after Royal Assent, rather than wait until the secondary legislation is in place—because, of course, there are various steps that have to follow Royal Assent. First, the referendum date has to be set; then the start date of the designation process has to be set; then the referendum period—the regulated period leading up to the poll—must be set; and the detailed conduct rules governing how the poll will be administered must be set. Then the designation process can take place. Under the Political Parties, Elections and Referendums Act, that is a six-week process, with four weeks for applications, and two weeks for the Electoral Commission to make a decision. The referendum period will also need to occur.

Once the legislation has been passed, work can be done. If a change to the franchise were to be made, we would need to ensure that newly eligible voters were aware of their right, as has been pointed out by the noble Lord, Lord Willoughby de Broke. As the Electoral Commission makes clear, the media and others will be expected to play a significant role in informing any newly enfranchised group of their rights, with 16 and 17 year-olds being at the moment those that may be enfranchised. It is a significant piece of work that has to be done; the Electoral Commission has a duty to discharge its role, and I respectfully say that it is not helpful to put it in the Bill or, indeed, to tell the Electoral Commission how to discharge its duty.

[Lord Forsyth of Drumlean]

I have just been reflecting on what my noble friend seemed to imply—that there might be some tactical reason for the amendment. He did imply that, but he might just like to note that the people who have spoken in favour of this amendment all voted against extending the franchise and that, whether the Electoral Commission or the Government are required to do this, none of us would for a moment imagine that the Government would try to rush this process. Surely he would not want to imply that there were any tactics behind that.

[Lord Faulks]

I accept the gentle rebuke from my noble friend. If I seemed to imply that, I would like to disabuse him. The central message that I wish to convey is that there is no point in the Government trying to second-guess the motives behind amendments, nor indeed to try to anticipate how individuals will vote in the event of a restriction or extension of the franchise. The question is whether the amendment is something that helps the Bill, and whether it is a reasonable amendment to incorporate in the Bill. We take the view that it is the Electoral Commission that should advise us how best to achieve what we must achieve, depending on what the legislation ends up telling us to do. It would not be appropriate to give the commission effectively a form of veto over the Government and Parliament’s decision as to whether a referendum should be held. I respectfully say that this Government, working with the commission, electoral registration officers and civil society will do all that they can to allow any newly enfranchised voter to have the opportunity to register. However, I am grateful to noble Lords for discussing an important fact—that there will need to be some work done to respond to any change in the franchise, and it will be challenging work. The Electoral Commission will do what it is supposed to do. But I respectfully ask my noble friend, without in any way impugning his motives, to withdraw his amendment, in the reassurance that its duties will be discharged, if it becomes necessary.

[Lord Hamilton of Epsom]

I am very disappointed in my noble friend, because he is basically saying that the advice of the Electoral Commission could be overridden. If he is not saying that, it is quite difficult to see why he is rejecting my amendment. I think that people will find it very difficult to understand how, on the one hand, you enfranchise 16 and 17 year-olds and then, on the other, leave the Government free to hold the referendum in three months when only one-quarter of the 16 and 17 year-olds are on the register. That is the illogicality of the position that he is in. However, I am incredibly heartened by the advice that he received from the noble Baroness, Lady Morgan, because she told him that he should go away and think again about this—and I seriously echo that sentiment. I shall withdraw the amendment now, but I want him to think very carefully about this, so I shall resubmit it at Third Reading. In the mean time, he can give some serious thought as to how the problem can actually be dealt with.

Criminal Justice: Transgender People

Lord Faulks Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what assessment they have made of the current policy on the treatment of transgender individuals in the criminal justice system.

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

My Lords, criminal justice agencies are mindful of their duties under the Equality Act 2010. In particular, the National Offender Management Service policy on the care and management of transsexual prisoners states that prisoners are normally placed according to their “legally recognised gender”. The guidelines allow, however, some room for discretion and in such cases senior prison management will review the circumstances with relevant experts to protect the prisoner’s safety and well-being, and those of other prisoners.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Tara Hudson—a woman, after six years of gender reconstruction—was originally imprisoned at HMP Bristol, a tough prison for 600 men, causing her great distress. She was moved to a women’s prison only after the judges considering her appeal suggested that the Prison Service reconsider. How can prison allocation be so insensitive to transgender offenders, particularly in the light of the Minister’s Answer? Will his department ensure that in future, if a transgender defendant is at risk of a custodial sentence, full and careful thought will be given to allocation before sentence rather than after placement?

[Lord Faulks]

I am slightly surprised that the noble Lord has commented in such detail on Tara Hudson; he will be aware of the obligations under the Data Protection Act and the Gender Recognition Act 2004, which place restrictions on the disclosure of information relating to prisoners. As noble Lords will be aware, it is the policy of the Ministry of Justice and its executive agencies never to discuss individual cases. However, without breaching any of the obligations under those Acts, I can assure the House that she is being held in an appropriate environment and is receiving the care that she needs.

[Lord Cashman (Lab)]

My Lords, I agree entirely with the Minister on the approach to anonymity but, in this and other cases, there is deep concern about treatment within the criminal justice system. There are, however, good works being undertaken, such as at Her Majesty’s Prison Stafford. Will he reassure the House that there is ongoing training and awareness-raising of the issues of transsexuality, particularly when aspects of the criminal justice system are outsourced?

--- Later in debate ---

[Lord Faulks]

The noble Lord makes an important point. There is an emphasis in the prison officer training, which has been extended in its length and its content refreshed, on respecting the needs and rights of each individual prisoner in their care. There is a component of the mandatory training that addresses the Equality Act and the nine characteristics protected under that legislation, of which gender reassignment is one. Probation officer training has a consistent emphasis on meaningful engagement with individual offenders to support their rehabilitation.

[Lord Scriven (LD)]

My Lords, if the key issue is legal recognition, why, in the care and management of transsexual detainees for immigration purposes, does the Home Office manual state that it is appropriate to place transsexuals in the estate of their acquired gender,

“even if the law does not recognise them in their acquired gender”,

and why can that not be applied to the Prison Service as well?

[Lord Faulks]

As I indicated, the Prison Service tends to—correctly, I suggest—allocate prisoners according to their legally recognised gender, but there is a discretion to respond to the individual circumstances of a case, which is often as a result of a thorough risk assessment involving both the prisoner and other prisoners. Often, a multiagency panel will be involved. It is indeed the policy of NOMS to make sure that these matters are dealt with sensitively.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, returning to what the noble Lord, Lord Marks, said, the Minister seemed to suggest that this happens at the point of prison, which really is too late. Surely, when a person is leaving court, they need to be in the right van to go to the right prison. Should the decision not be taken earlier, before they leave court? Can he assure us that the staff there are properly trained and that the decision is taken at the right point?

[Lord Faulks]

The noble Baroness makes an important point and the National Offender Management Service is currently looking at ways to facilitate the proper recording of this information through the introduction of an equalities self-declaration form to be completed by all defendants who are adjourned for the preparation of a pre-sentence report. These details are very difficult to obtain while adopting appropriate sensitivity and recognising the obligations under the Gender Recognition Act.

[Baroness Hussein-Ece (LD)]

In light of some of the comments on previous cases, will the Government review the medical and bureaucratic hurdles for securing a gender recognition certificate under the 2004 Act?

[Lord Faulks]

The Gender Recognition Act is generally considered to be working well. It is not something to be undertaken lightly. Gender recognition certificates are granted by the gender recognition panel and I understand that there is no great criticism of the process. It is an important step forward from where the law was reluctant to recognise change of gender hitherto.

[Lord Patel of Bradford (Lab)]

Does the Minister agree that, while all the issues he has put forward are very practical and implementable, the problem is that the prison system is bursting at the seams? We have more than 86,000 prisoners and staff numbers have been cut year on year. How will officers prevent the homophobic attacks that have been occurring a lot in prisons, and how will they support the systems the Minister has put forward to help?

[Lord Faulks]

Our prison officers face a great many challenges and they perform their duties with admirable resolve and skill in often challenging circumstances. They have duties to all prisoners but particular duties to those who may be undergoing gender recognition. They are particularly aware of those challenges and will treat those prisoners with appropriate sensitivity.

[Lord Harris of Haringey (Lab)]

My noble friend Lord Patel raised an important issue about overcrowding in prisons. Under those circumstances, the sensitive consideration of to which prison a prisoner is to be allocated is made much more difficult simply because there are not enough vacant prison places for the allocation to take place.

[Lord Faulks]

In deciding on the appropriate allocation, there must sometimes be a period of hiatus. Where it is unclear what physical and anatomical risks an individual may present in their contact with other prisoners, they are often held in a secure environment away from other prisoners while their circumstances are clarified, so that a considered decision may be made after advice has been received from appropriate professionals.

Ministerial Code

Lord Faulks Excerpts

Tuesday 3rd November 2015 Lords Chamber

[Lord Dubs]

To ask Her Majesty’s Government why they have changed the Ministerial Code.

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

My Lords, the Ministerial Code is normally updated and reissued after a general election. The updated code makes it clear that Ministers must abide by the law. The obligations on Ministers under the law, including international law, remain unchanged.

[Lord Dubs (Lab)]

My Lords, it is somewhat puzzling for the Government to make quite a significant change in the code and for the Minister to say that it makes no difference. Some of us wonder why the change has been made at all—if it had not, the Minister would not have had to answer this Question and others on this. As an annexe to the Ministerial Code, there are seven principles of public life, one of which is openness. If Ministers have to show openness, why can the Government not show openness on this?

[Lord Faulks]

The Government are showing openness. The Ministerial Code is available for all to see. It is normal for there to be a variation of the Ministerial Code, just as there is with the Civil Service Code from time to time. For example, the noble Lord may be aware that the Civil Service Code changed from 1999 to 2006. In 1999 it included,

“the duty to comply with the law, including international law and treaty obligations, and to uphold the administration of justice … together with the duty to familiarise themselves with the contents of this Code”.

That became much shorter in 2009. The updated code says:

“You must … comply with the law and uphold the administration of justice”.

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister may recall that Justice Scalia of the US Supreme Court has argued on a number of occasions that the United States should not pay attention to the conventions and constraints of international law because of the exceptional perfection of the US constitution. Is there a similar degree of exceptionalism in the British Government’s approach to international law, or do we expect others to pay perhaps a little less attention to the constraints of international law than previously?

[Lord Faulks]

Justice Scalia is an originalist on the American Supreme Court and has a particular view of America’s position. Our position is that all Ministers are obliged to abide by the law, including, in so far as it is ascertainable, international law in this country.

[Lord Campbell-Savours (Lab)]

Why can the Government not transfer responsibility for carrying out investigations into the conduct of Ministers to the Parliamentary Commissioner for Standards in the House of Commons and the House of Lords Commissioner for Standards in the case of Lords Ministers? Surely that would restore some confidence in the system, which has been discredited by recent cases.

[Lord Faulks]

The Ministerial Code sets out clearly what the Prime Minister expects of his Ministers. If they depart from that code, it is evident that they have departed from it and there are modes of dealing with that. I take the noble Lord’s suggestion, but at the moment the situation seems to be satisfactorily dealt with.

[Lord Brown of Eaton-under-Heywood (CB)]

Am I right in supposing that this amendment is really a prelude to the introduction of a British Bill of Rights in place of the existing Human Rights Act, and is intended principally to clarify the fact that our own domestic primary legislation trumps unincorporated treaty law?

[Lord Faulks]

The noble and learned Lord is quite right. He points to the difference between the dualist system, which we have, and the monist system whereby unless law is incorporated in an Act of Parliament, it does not become automatically a part of the law. The question of the amendments to the Bill of Rights, when or if it comes before Parliament, is somewhat separate but he accurately states the necessary constitutional principles.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, if the former AG, journalists, campaigners, senior lawyers, ex-Ministers, ex-civil servants and academics think this change is wrong, is it possible that they are right and that the Government are not? Can the Government explain why they sneaked this change through, along with a change to the code for special advisers, rather than make a proper Statement in the House?

[Lord Faulks]

There is no question of sneaking it through. It has been available since 15 October 2015 and this is the second time in a week that I have answered questions at the Dispatch Box on the Ministerial Code. It has also been the subject of much debate, as the noble Baroness points out, in the newspapers and elsewhere. Those authors she cites are entitled to their view, but it is not a view that I agree with.

[Lord Beecham (Lab)]

My Lords, if the change makes no difference why make the change?

[Lord Faulks]

I indicated that from time to time the Prime Minister may clarify duties, just as the Civil Service Code does. That is his prerogative. The duty on the part of Ministers is to obey the law.

[Baroness Whitaker (Lab)]

My Lords, I am not clear whether I heard an answer to either my noble friend Lord Dubs’s Question or the question from our Front Bench. Why exactly did the Government change the wording?

[Lord Faulks]

I fear that I will be repeating myself but they have changed the wording because it is a simple summary of what is plainly the position, which is that Ministers have an obligation to obey the law. The code does not change the obligation that comes from the law; it is simply a summary for Ministers.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, the Minister, who I listened to with care, referred to clarification. Clarification often implies that something was missing before that was not clear. What exactly is this change of wording for?

[Lord Faulks]

Clarification is very much in the eye of the beholder. A Minister reading the Ministerial Code might feel better or less well informed by the subsequent iteration of this code but, as I said in relation to the Civil Service Code, from time to time Prime Ministers feel that the matter might be expressed in one way rather than another. What it does not do is alter the nature of the obligation.

[Lord Pannick (CB)]

Can the Minister assure the House that the change has absolutely nothing to do with government concern about judgments of the European Court of Human Rights with which they do not agree?

[Lord Faulks]

The noble Lord knows only too well the Government’s obligation in relation to judgments of the European Court of Human Rights. There is an obligation under Article 46 of the European convention, whereby parties to a judgment undertake to abide by the final judgment of that court, but those judgments are declaratory. We and previous Governments have been in regular communication with the Committee of Ministers over how best to reflect those judgments in our own law. That is an iterative process, which involves Ministers going from time to time to Strasbourg. At the moment, Parliament has given no indication—I suspect that this is what lies behind the question—that it wants to give prisoners the vote.