European Union Referendum Bill

Lord Faulks Excerpts

Monday 2nd November 2015 Lords Chamber

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

My Lords, the purpose of this group of amendments is to allow British citizens resident in other EU member states to vote in the EU referendum irrespective of the time they have been resident overseas. This would lift the current 15-year time limit on voting rights for British citizens resident overseas, but only for those Britons resident in the EU. The noble Lord, Lord Hannay, said that with this group we were entering calmer waters. The waters proved to be calm-ish. As noble Lords will be aware, the Government are committed to lifting the 15-year rule. I trust that some of the support that has come from various quarters of the House will be extended when we bring forward a dedicated Bill in due course.

We should not make novel changes to the franchise lightly. Both Houses will need to consider it very carefully. It would require complex changes to the electoral system; we would need to take decisions about how to deal with potential fraud, and how to update electoral registration and ensure that changes are fair and robust. The principle—though I hesitate to use that word in this debate—is simple, but there is real complexity here as well. Critically, we want to include all British citizens living overseas, not only those living in other EU member states. The noble Lord, Lord Grocott, pointed to differences that might arise between Stockholm and Oslo with this amendment; my noble friend Lord Flight compared Berlin and Singapore. I know that the noble Baroness, Lady Miller, is not concerned with those outside the European Union, and that the noble Lord, Lord Anderson, said that things are rather different if you are not in the European Union. However, it may not be easily justifiable to distinguish between those living within and outside the European Union. The noble Lord, Lord Grocott, was right to say that degree of interest—either specifically or in terms of effect—is not the criterion for deciding whether somebody is allowed to vote. Some who live within the European Union may be entirely indifferent to what happens in Europe; some who live outside the European Union may be either directly affected or significantly concerned with the outcome.

--- Later in debate ---

[Lord Hannay of Chiswick]

Is the Minister seriously suggesting that, if and when the piece of legislation we are now discussing goes on the statute book—which I hope and think will probably be around Christmas—the Electoral Commission will have any inhibition at all in getting on with it, should it contain a provision that this group of people should have the vote? Surely he is not suggesting that the Commission has to wait until the Government decide the date of the referendum before it starts work.

[Lord Faulks]

The date of the referendum is of course unknown. No doubt the Electoral Commission will fulfil whatever the existing legislative obligation requires it to do. It may require a great deal of energy and expenditure, and while I am not saying from the Dispatch Box that it would be impossible, one should not underestimate the complexities involved in the process.

The noble Lord, Lord Shipley, said in effect that he is concerned that there was some form of delay by the Government. Perhaps I may reiterate that the Government are committed to scrapping the 15-year rule and they are currently considering the timetable to do this. The date of the referendum is not known, so I am afraid that I cannot make any commitment that votes for life will be in place in time for the referendum. However, we should remember that many British citizens living abroad will be eligible to participate in the referendum vote.

[Baroness Royall of Blaisdon]

My Lords, forgive me, but I am bound to ask this. The Minister has cited the complexities of introducing new legislation, which I accept entirely. But knowing of the complexities involved and the organisational challenges mentioned by the noble Lord, Lord Dobbs, and knowing that we are going to have a referendum, why was the legislation to extend the franchise to all citizens living abroad for the forthcoming elections not introduced as one of the first Bills of this parliamentary Session?

[Lord Faulks]

The Government have their priorities and a considerable amount of legislation has been introduced, some of which has moved fairly slowly through your Lordships’ House. I cannot speak for the Government’s assessment of their priorities. This is an important matter and it will no doubt take its place in due course.

The noble Baroness, Lady Royall, suggested that the Government’s enthusiasm for UK citizens having a vote outside the EU might be motivated by their apparent desire to vote Conservative. As I have said consistently from the Dispatch Box, we have no idea how people would vote, whether they live in the EU or outside it. The Government are simply not concerned with trying to second-guess anything. They are concerned only with legitimacy—here, I agree entirely with the noble Baroness—that people feel there has been no manipulation and no sense that there has been an attempt to skew the result, however illegitimate they might think it was. We suggest that the best criterion is to have the Westminster franchise. Of course, I am sympathetic to much that lies behind the amendment, having regard to the Government’s commitment in respect of votes for life.

I should finally point out that many British citizens living in the EU and elsewhere in the world will be able to vote in the referendum as long as they have not been living overseas for 15 years or more. The parliamentary franchise already allows them to vote. So while I am sympathetic to the amendment, I do not believe that this is the time or place to make those changes.

[Baroness Miller of Chilthorne Domer]

My Lords, I warmly thank all those who have spoken in this interesting debate, which I think has fleshed out some of the major questions. I would like to make a couple of points. The noble Lord, Lord Grocott, asked what the difference is between someone living in Oslo and someone living in Stockholm, and other noble Lords had that question in their minds. The difference is that the people living in EU countries, when they decided to work or to retire abroad, for example, did so on the basis of being EU citizens, not citizens of anywhere else. What we are possibly about to remove in the EU referendum, if it goes the other way, is that EU citizenship. That puts them into a totally different category.

Maximum Number of Judges Order 2015

Lord Faulks Excerpts

Monday 2nd November 2015 Lords Chamber

Moved by

[Lord Faulks]

That the draft Order laid before the House on 7 September be approved.

Relevant documents: 4th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 October

Motion agreed.

Prisons: Young People

Lord Faulks Excerpts

Thursday 29th October 2015 Lords Chamber

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

My Lords, I join the noble Lord, Lord Beecham, in thanking all noble Lords who have spoken in this debate. I especially thank the noble Lord, Lord Harris of Haringey, for convening it and I welcome it as an opportunity to highlight the Government’s approach to the important issues which his report raises.

I also specifically thank the noble Lord, Lord Harris, and the Independent Advisory Panel on Deaths in Custody for its review into the self-inflicted deaths in custody of 18 to 24 year-olds, which was published in July of this year. I pay tribute to its thorough and comprehensive work. The noble Lord and his colleagues have given the Government a great deal to think about by their recommendations, which are being considered with the utmost care. As the noble Lord stated, there are no easy answers to these questions and the recommendations require a considerable level of care and attention.

Noble Lords may be aware—the noble Lord, Lord Beecham, referred to this—that the recommendations are being considered in the context of a Justice Select Committee inquiry into young adult offenders in the criminal justice system, announced in July, as well as the Secretary of State’s wider prison reform considerations. The Government will respond to the recommendations of the Harris review once the interim chair of the panel on deaths in custody is in position.

This debate is not the forum for the Government’s response to the review, but what has been discussed today will certainly contribute considerably to the Government’s ongoing considerations. The Government have been clear in their commitment to make prisons places of reform, rehabilitation and redemption. In the future, prisons will not merely be places of punishment but will give those who find themselves incarcerated the chance to change.

This debate has ranged far and wide, dealing not simply with 18 to 24 year-olds but with the life journeys of many young offenders before they reach that age. It has dealt, to some extent, with older offenders, who now make up an increasing proportion of our prison population. As the noble Lord, Lord McNally, said, this House represents a significant source of wisdom for the Government.

Crime is falling overall. Nevertheless, we know that more must be done to divert individuals even before they enter the criminal justice system. Progress has been made on this front. The newly expanded troubled families programme is now gearing up to work with another 400,000 families during this Parliament. The programme helps families struggling with multiple issues, which now include parental offending, by co-ordinating services better to get to the root cause of their problems. Where crime is an issue in these families, it means we are getting a better idea of the reasons behind it, and thus a better chance of intervening early to try and stop it happening again. I note the comment made by the noble Lord, Lord Harris, about the focus being perhaps on troubled adolescents as much as on troubled families.

We know that 41% of prisoners observed domestic violence as a child and that 24% had, at some point, been in care as children. The noble Lord, Lord Adebowale, emphasised the problems that those who have been in care can encounter and the fact that they so often find themselves in prison. He will be aware that the noble Lord, Lord Laming, is currently leading a Prison Reform Trust review into care leavers, and we are expecting that report in 2016.

I also pay tribute to the work done by the noble Baroness, Lady Young, in the Young review, published in December 2014, which looked at improved outcomes for black and Muslim young men. I am glad that she had a satisfactory meeting with my ministerial colleague Andrew Selous and note her observations about the importance of statistics to inform trends. The next publication of statistics on race and the criminal justice system is scheduled to be released on 26 November 2015. We value the scrutiny that these figures encourage into this crucial area, and I agree with her that without examining and understanding these figures in an open and transparent way, we will not be able to make sufficient progress.

The percentages I referred to demonstrate the significance of the work, which has been led by my colleague, the Minister of State for Children and Families, aimed at improving child protection, supporting children in care and speeding up adoption—all measures which in the long term will be likely to impact positively on rates of offending, by reducing the conditions in which we know that offending behaviour flourishes.

Once an offence has been committed, diversions away from the criminal justice system may apply. Liaison and diversion services, now operating at police stations and courts across half the country, identify people of all ages who have mental health issues, learning disabilities, substance misuse issues and other vulnerabilities such as debt or homelessness when they first come into contact with the criminal justice system. Here, I pay tribute to the work of the noble Lord, Lord Bradley. As he knows, and by way of response to a question posed by the noble Baroness, Lady Healey, this is being trialled across more than 50% of England. Further rollout is under consideration, and similar services for referral to mental health and learning disability services have been developed in Wales.

Reports from liaison and diversion services help to inform charging or disposal decisions by the police and inform magistrates and judges when sentencing. One theme that has emerged from the debate is the importance of continuity of information and the efficient transfer of information about individuals, so that those sentencing or dealing with young offenders have all the information at their fingertips. Liaison and diversion services can also identify the available treatment and support options, which may allow diversion away from custody.

I turn to reducing the prison population—a theme mentioned by several noble Lords. Many offenders are not subject to those diversions and, unfortunately, end up in front of the courts. I should confirm that the principle of judicial independence is vital and sentencing decisions must lie in the hands of magistrates and judges alone—although, as the noble and learned Lord, Lord Phillips, emphasised, it is most important that timely information is available for sentencing tribunals to enable them to sentence on the best possible information. It is not appropriate for Ministers to influence the decisions in individual court cases, beyond setting the framework within which courts operate.

The noble and learned Lord sentenced a number of people for long periods in his distinguished time as a judge. As a much more junior judge, I have sentenced offenders to prison for shorter periods. He correctly identifies that sentences have been getting longer. There are a number of reasons for this. There is the possibility of media pressure. I think that there was also something of an arms race between political parties on the matter. No political party can claim innocence of that. There was a stress on trying to be tough with offenders. I think that it is probably safe to say that at the moment there is not an inappropriate battle between parties to sound unnecessarily firm on offenders. I genuinely think that there may be an opportunity for there not to be an undue escalation of prison sentences simply to respond to some perceived political imperative.

However, we recognise that judges and the public need to have confidence in community sentences. Where offenders are assessed by courts as being of no danger to others, we will aim to increase the use of electronic monitoring. We are committed to delivering a new generation of GPS tags, the technology for which is currently being tested. A comprehensive review of the electronic monitoring programme is under way to make sure that an efficient service is delivered. We are confident that the resulting system will provide the highest levels of technology available. The ability to locate and track offenders will be a valuable tool, allowing us to keep a closer watch on them without having expensively to imprison them.

The law makes it clear that custody should always be the last resort for a sentence. The custody threshold test, which all recorders and magistrates are taught about and is set out in the Criminal Justice Act 2003, requires a court to be satisfied that the seriousness of the offence is such that only a custodial sentence is appropriate. Only if community orders or fines are considered inappropriate can the court impose a custodial term.

The noble Lord, Lord Dholakia, made the point that sometimes sentences are too short and that in the time when a young offender is in prison, nothing much can be achieved. At various times, Governments have tried to specify the length so that it is not too short or too long, but it is a relevant factor and sentencing tribunals should very much bear it in mind.

When an offender does go into custody, it is important that we rehabilitate that person so that they do not return to prison. That is why the coalition Government took steps to introduce supervision for offenders released from short sentences. In the past, such offenders were released at the halfway point of their sentence with no supervision and no support. It is perhaps not surprising that this group had high reoffending rates. Following the Offender Rehabilitation Act 2014, these offenders are now subject to a year of supervision in the community, designed to break the cycle of offending that leads to short custodial sentences in the first place.

I entirely accept what the noble Lord, Lord Dholakia, said about the importance of self-respect in young offenders and what the noble and right reverend Lord, Lord Eames, said on the importance of someone showing a bit of interest, as in the case of David which he told the House about.

There are some hopeful signs about young offenders. The noble Lord, Lord McNally, spoke of the significant reduction in the number of young offenders in custody at the moment. Probably, the general population would be unaware how small that population is: 1,000 of them, with a very small number of young girls—approximately 50. So there are hopeful signs.

Noble Lords discussed improving conditions within prisons. Where the courts consider the crime to be serious enough, of course prison must be the punishment. When offenders are punished by being sent to prison, the loss of liberty is the punishment. However, we have a duty to make prisons safe, secure and dignified so that offenders can be rehabilitated within them.

I join other noble Lords in paying tribute to the work of the Prison Service. I am grateful for the observations of the right reverend Prelate the Bishop of Portsmouth in that regard. In challenging conditions, the men and women who work in and for prisons do a fantastic job, keeping society safe from those who would pose a danger and rehabilitating inmates so that they can once again contribute to society.

In the context of the report of the noble Lord, Lord Harris, it is of course a tragedy if any young person commits suicide. It is also a real shock to the staff who work in these young offender institutions. They take a long time to recover from these instances, often knowing the young offenders well. The work they do goes unnoticed, but it is absolutely vital to the function of our criminal justice system and deserves recognition.

The noble Lords, Lord Carlile and Lord Fellowes, referred to improving conditions, and we know that there is much to do. The Secretary of State set a clear direction in this area. Major estate reforms will remove those facilities that no longer suit the needs of a modern Prison Service from our estate and free up funds for the construction of modern prisons. In these new builds, we can design out the flaws in existing structures that facilitate drug-taking and violence. Such a project is already under way in north Wales.

Furthermore, we continually work to make prisons as safe as possible for both offenders and staff. One improvement in this area is the Serious Crime Act 2015, which brought in two new offences: being in possession of a knife or other offensive weapon in a prison without authorisation; and the throwing of items over a prison wall without authorisation. The Act will reduce the incidence of violence in prisons and increase our ability to safely and securely rehabilitate prisoners.

We also recognise the significant problems caused by psychoactive substances known as “legal highs” in prisons. They have been linked to specific acts of violence and erratic behaviour. Therefore, we introduced a number of measures to tackle the use of psychoactive substances in prison. Operationally, we deploy a robust range of security measures to reduce the availability of legal highs. More than 500 specialist dogs work in prisons, searching cells, visitors and perimeters. Closed visits through a glass screen may be used and we are exploring the use of body scanners to reduce the threat posed by drugs smuggled into prisons, including the threat presented by so-called plugging. There has been a major push on communications to ensure that governors and staff are aware of the associated dangers, and that prisoners are aware of the consequences of taking psychoactive substances.

The Secretary of State clearly set out his commitment to liberating offenders through learning. Time spent in prison must be used advantageously. We must offer prisoners the chance to obtain the qualifications and skills that will equip them to lead successful lives outside prison. This is a vital part of the Government’s reform agenda. We know that one in five prisons has an inadequate standard of education and two in five require improvement. The Secretary of State commissioned Dame Sally Coates to chair a review into the quality of education in prisons which will report in the spring. In the mean time, we have a number of steps and measures under way to improve support for prisoners with learning disabilities, develop more creative teaching methods and collect better management information.

Supporting offenders into meaningful employment is a vital aspect of the Government’s approach. This supports those who have committed a crime to provide an effective contribution towards society, helping to break the cycle of offending. Of course, we do not want to push them into a job, as described by the noble Lord, Lord Judd, but we are keen to increase the number of employers who engage with prisoners and offenders to offer them employment opportunities. We hold an Employers’ Forum for Reducing Re-offending, chaired by the CEO of Timpson, James Timpson, which brings together employers who support the employment of offenders to share their experiences and promote the benefits of employing offenders to other businesses. We have also built up a relationship with Halfords that is also worthy of note. I have had a chance to meet representatives from both Halfords and Timpson, and they both stress how often these employees turn out to be extremely good, very keen to have the job and stick at it and soon completely absorbed into the working community.

[Lord Judd]

I am very grateful for the Minister’s response on that point—and of course a lot of positive work is done and results are achieved. However, would he pick up the point that one must not drive out the imperative of recognising that some of these youngsters are just not prepared or ready for work and need expenditure in terms of the support that needs to be provided to enable them to join the workforce?

[Lord Faulks]

I entirely accept that—not everybody is ready for that sort of job, as is recognised by the potential employers. But some are, and if they are it is certainly an advantageous step to take.

Before I turn to the subject at the heart of the report from the noble Lord, Lord Harris, I would like to deal with the question raised by the noble Lord, Lord Fellowes, about prisoners’ votes, but it is a complex one. I hope he will accept the fact that, at the moment, the Government do not believe that prisoners should have the vote, but I recognise that there are different views on that issue.

As to the subject at the heart of the report from the noble Lord, Lord Harris, whenever a prisoner, of whatever age, takes their own life, it is a dreadful and tragic event. We recognise that prisons hold a particularly vulnerable population, so the prevention of such deaths is a priority for the Ministry of Justice, and NOMS. Staff do an incredible job of keeping prisoners safe and prevent many prisoners from taking their own lives. Every day, prisons manage around 2,000 prisoners deemed to be at a heightened risk of suicide or self-harm. We know that the factors that are associated with self-harm and self-inflicted deaths can become more pronounced in prison, but there is no single factor which explains why self-inflicted deaths in prisons have increased, and no simple solution to solve it.

All prisons are required to have procedures in place for the identification, support and management of those at risk of harm to themselves, known as the ACCT process. I note the comments from the noble Lord, Lord Harris, on that matter; a review of the process will report by the end of this month. We work closely with health providers to support prisoners with mental health conditions. NOMS has a long-standing and close partnership with the Samaritans, whose volunteers support prisoners to become listeners, providing trained peer support to fellow prisoners who are experiencing distress. On the issue of mental health, NHS England has developed national specifications for health and justice services. All health services for prisons must focus on delivering improved health and well-being for offenders. Learning lessons is crucial to reducing self-inflicted deaths. We welcome the work of the Prisons and Probation Ombudsman.

There is a great deal more to be done, and a great deal more that I should like to say in response to the report, but time is against me. The report from the noble Lord, Lord Harris, requires and will receive a detailed response. It is unfortunate that the final review could not be presented at the recent ministerial board—he referred to that in opening—but I understand that the two members of the review team were present, and there was a long discussion on deaths in custody, with contributions from the director of NOMS and an external expert on suicide. I assure the noble Lord and the House that the Secretary of State has given the review careful consideration and the contents of his report and what noble Lords have said in this valuable debate will greatly assist the Ministry of Justice. I thank all noble Lords.

British Bill of Rights

Lord Faulks Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government when they intend to publish their proposals for a British Bill of Rights.

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

My Lords, the Government will fully consult on our proposals before introducing legislation for a Bill of Rights. Further details regarding this consultation will be announced in the autumn.

[Lord Bach (Lab)]

I thank the Minister for his reply to my Question. The House will know that the Ministerial Code has recently been amended to remove the reference to Ministers having to comply with international law and treaty obligations. This follows the Permanent Secretary at the Foreign and Commonwealth Office saying that human rights are no longer a priority for his department. Will the Minister please give the House a categorical assurance that the amendment to the Ministerial Code will make absolutely no difference to Ministers’ existing duty to comply with international law and treaty obligations? If, as I hope, the answer to my question is yes, why has it been necessary to amend the Ministerial Code at all?

[Lord Faulks]

My Lords, as the noble Lord will be aware, we have a dualist system rather than a monist system. Neither Parliament nor the courts are bound by international law, but a member of the Executive, including a Minister such as myself, is obliged to follow international law, whether it is reflected in the Ministerial Code or not. All Ministers will be aware of their obligations under the rule of law.

[Baroness Goudie (Lab)]

Why was the decision taken by the Foreign Office and the Cabinet to downgrade human rights?

[Lord Faulks]

I do not believe that there was any downgrading of human rights. We have a proud history of protecting human rights, both here and abroad, and we will continue to maintain our concern for those human rights.

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

My Lords, independent reports—the Minister’s answer appears to confirm this—state that there will be no pre-legislative scrutiny of this vital and, frankly, ill-defined proposal and that the Government will go to legislation after a consultation of about only 12 weeks. Can the Minister refute those reports and promise full pre-legislative scrutiny of a constitutional measure of this fundamental importance?

[Lord Faulks]

We will consult fully on our proposals, and will announce further details in due course. There have already been two consultations pursuant to the commission on a Bill of Rights, and there will be a third consultation. This is in marked distinction to what happened on the Human Rights Act, which was brought in without any consultation at all, within six months of the Labour Party gaining power.

[Lord Lexden (Con)]

Will the Government give a clear assurance that their proposals will be fully compatible with the European Convention on Human Rights, to which prominent Tories made such a marked contribution?

[Lord Faulks]

There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister tell us whether it is proposed to consult the devolved institutions, and if so, when that consultation will take place?

[Lord Faulks]

We will consult the devolved assemblies, because we are conscious of the intricate treaty arrangements that exist. We will do so thoroughly, and keep them well aware of all our plans.

[Lord Soley (Lab)]

A number of us are worried about the impact on our European colleagues, not least because of the message that what we are talking about doing sends to Vladimir Putin and a number of east European countries. I am concerned about that, and I think a lot of people in Europe are concerned about it too, particularly as it comes from a country that has taken such a leading role on the rule of law throughout history.

[Lord Faulks]

A number of objections have already been raised, before we have even published our proposals, and I hope that all Members of this House will approach this British Bill of Rights—something that was floated not only by the Liberals but twice by the Labour Government—with an open mind. Among the various objections to a proposed Bill, the idea that the fact that we have any doubts about the primacy of the Strasbourg court might affect Putin’s foreign policy is one I find absolutely ridiculous.

[Lord Beecham (Lab)]

Will the Minister tell us whether the Attorney-General was consulted about the change to the Ministerial Code? What is his view of the remarks by the former Treasury Solicitor and head of the government legal service that:

“It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up”,

and that Ministers,

“will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law”?

[Lord Faulks]

I have already made clear to the House what Ministers regard as their duties, and I do not resile for a moment from that. As the noble Lord will well know, details of internal discussions and advice are not disclosed to the House—and I do not propose to depart from that well-established convention.

[Lord Hannay of Chiswick (CB)]

The Minister has given us a very forthright reply on President Putin—but is he quite sure that President Putin takes the same view as he does?

[Lord Faulks]

I cannot for a moment pretend to understand President Putin’s thought processes or his secret desires. But whether or not we are satisfied with the decisions of the Strasbourg court can hardly justify some of the extraordinary tactics that he uses in Ukraine, or to treat dissidents and those who oppose his policies.

[Baroness Corston (Lab)]

My Lords, the Minister has just told the House that the consultation will start in autumn. Which autumn does he have in mind? Does he mean that it is imminent, or that it will be some time in the future?

[Lord Faulks]

This autumn.

[Lord West of Spithead (Lab)]

My Lords, will the Minister be able to address the issue of the Smith judgment, whereby officers such as myself, who fought to the best of our ability with the weapons we had at hand rather than going away and waiting until we had better weapons, would now be liable for the actions they took? Can this be addressed?

--- Later in debate ---

[Lord Faulks]

I do not want to comment on what will or will not be in the consultation, but it is surely likely that in the course of the consultation, a number of people will want to advise us on the scope of Article 2 and its effect on combat immunity and what happens on the battlefield.

European Union Referendum Bill

Lord Faulks Excerpts

Wednesday 28th October 2015 Lords Chamber

[Baroness Morgan of Ely]

It was right to give the Scottish people the autonomy to decide that 16 year-olds could vote, but the Government opened the door. They knew when they allowed the SNP to determine a lot of the rules of that referendum that that would be the consequence.

I want to turn now to the practicalities of implementation. There would undoubtedly be some issues with the practicalities of implementing this amendment. Obviously, the further away the referendum is, the easier it will be to enact. Of course, electoral registration officers would need to actively encourage and inform those newly eligible electors to vote and if a separate registration initiative for young people is required, then so be it. Let us make it happen. The current system already allows for 17 year-olds and many 16 year-olds to go on the register so we would not be starting from scratch. We could use social media to encourage this age group to inform themselves. They are experts at this and it is important that we understand that that would be an easy way to communicate with them.

It could be argued that it would be easier to implement this policy in England than it was in Scotland because, according to the Government’s own website, after 16 in England you have to stay in full-time education at college or school, start an apprenticeship or traineeship, work or be a volunteer. So we know where these people are. It is not quite as clear-cut in Scotland but in England, according to the Government’s website, we know where they are. So ultimately, whether this is able to occur or not is a question of political will. If the Government want this to happen they can overcome those technicalities in the way that Scotland did. The Government should also remember that when the Electoral Commission last consulted the public on whether 16 and 17 year-olds should be allowed to vote, 72% agreed that they should be given a voice. I urge the Minister to rethink on this issue and to be aware that the voters of the future are watching pretty closely.

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

My Lords, this has been an excellent debate, with strong feelings expressed on all sides. I hope noble Lords will forgive me if I do not recite all the different amendments and what they purport to do because in effect they come down to one issue: whether or not we should allow 16 and 17 year-olds to vote in this referendum. The voting age for UK parliamentary elections is set at 18. This is the voting age which was used in the 1975 referendum on EEC membership and the 2011 alternative vote referendum and it is the voting age that is used in most democracies, including most member states in the EU. Only Austria in the EU allows voting at 16.

Let me deal with some of the issues that have been raised in the debate. Noble Lords have said that young people are or will be engaged and politically active. That may certainly be true of some 16 year-olds but equally it is true of some 14 year-olds and not true of some 50 year-olds, and political engagement or a lack of it cannot be enough justification for giving or denying the vote.

I am sure that the noble Lord, Lord Tyler, was an early enthusiast for politics and elections and would have been capable of making a decision even before the age of 16. In his Second Reading speech, my noble friend Lord Ridley was far more modest about his capacity to make a decision at 17 or 18, as was my noble friend Lord Blencathra. Enthusiasm has been observed, particularly in the Scottish referendum, but I adhere to the point that it would be odd if enthusiasm of itself created the right to vote. The appetite for this change is in question, as it seems that young people are split on the issue. Recent YouGov polling indicates that although 56% of 16 year-olds want to be able to vote, only 42% of 17 year-olds and 36% of 18 year-olds want the voting age to be lowered.

Another point that has been raised is that people will live with the outcome longer and therefore it is important that younger voters are involved. Of course, 15 year-olds will have to live with the outcome even longer, even if the change proposed in the amendment were made. So will 14 year-olds and those even younger than that, but no one is proposing that we extend the vote to these age groups. I agree with my noble friend Lord Lawson that those who are older are concerned for their children and grandchildren and have an important desire to serve their interests.

The development of the adolescent brain is a complex area. It might be thought that to deny 16 year-olds is to be in some way a killjoy. I have noted the enthusiasm that several noble Lords have shown for the appetite of 16 year-olds to be engaged politically—many of those who have been involved in the Lord Speaker’s visits in particular; the noble Baroness, Lady Crawley, spoke well about that, if I may say so. There is no one clear point at which we categorically say that a person becomes an adult. Research into brain development has yet to provide us with an obvious point at which we can distinguish between adolescents and adults. The noble Earl, Lord Listowel, talked about difficulties in decision-making. Although Professor Laurence Steinberg argues that 16 year-olds are as capable as adults of making measured decisions, Dr Jay Giedd argues that the human brain does not reach full maturity until at least the mid-20s. Clearly, this is an issue that requires careful consideration, and deserves to be considered as part of a stand-alone debate.

Noble Lords have pointed to a number of things that a person can do when they turn 16 and suggested that this means that they ought to be able to vote. These claims do not bear much scrutiny. It is true that a person can marry at 16, but this important and life-changing decision cannot be made in England without parental consent. Of course, it is inappropriate for parental consent to be required to cast a vote. Similarly, although 16 and 17 year-olds can join the Army, parental consent is required, and it is not until a person turns 18 that they can be deployed in a conflict zone. My noble friend Lord Blencathra listed a number of things that 16 year-olds cannot do and, in those circumstances, I do not propose to list them.

There is no clear point at which a young person becomes an adult, but the restrictions that I have listed and were referred to by several other noble Lords acknowledge the simple fact that it is generally at 18, not 16, that society draws the line. It is at this point that we deem a person to be fully capable of making important decisions. We must draw a line somewhere. Of course there is always an element of arbitrariness: what about the person who is 17 years, 11 months—or, as some noble Lords would have it, 15 years, 11 months?

[Lord Foulkes of Cumnock]

The Minister speaks of being capable of making decisions. Will he think carefully about that, and think about adults in the first stages of dementia?

[Lord Faulks]

I will indeed think carefully about that. As I conceded, a number of people, often through no fault of their own, may find it difficult to make decisions, but we are talking about those who, in old-fashioned parlance, used to be considered not to be capable of making a decision by reason of infancy. I entirely accept that to describe 16 year-olds as children may be inappropriate, but we should not assume simply because of the speed at which the world works, access to the internet or the capacity for travel, that this necessarily brings the wisdom to take decisions before the age of 18.

[Baroness Crawley]

Does the noble Lord agree that given the proportion of young people who access further and higher education now—nearly 50%—those young people have over a number of years gained a great deal of maturity and capacity that might not have been the case for a similar cohort of young people in, say, the 1950s, when only 3.4% of them accessed higher and further education?

[Lord Faulks]

Of course, it was not until 1969, in the Representation of the People Act, that the age was reduced from 21 to 18. It is not the case that young people have changed that radically—notwithstanding the speed of communication, about which we have heard so much.

[Lord Kerr of Kinlochard]

On that point, what conclusion would he draw? It was reduced from 21 to 18. What is the magic about 18? It used to be 21. What about driving licences? What about the age of consent? Surely there is a wide range of ages; there is no one particular age at which it can be said that everything has now moved from childhood to adulthood across the board. The question is: in this referendum, which is likely to be generational, why should we cut these young people out?

[Lord Faulks]

It is not a question of cutting people out, it is a question of deciding, on all the evidence, with careful consideration of what we know about what most young people of a certain age can or cannot do, and coming to a consistent view. The view has been taken that the age should be 18. Why should we change it simply to deal with this particular opportunity to vote?

[Lord Hannay of Chiswick]

Perhaps the noble Lord could help a little on this. He is advancing, as always, a highly sophisticated presentation of a totally negative point of view on giving the vote to 16 and 17 year-olds, but he is a member of a Government who held the door open to give Scots 16 and 17 year-olds the vote. Where were all those arguments then? Lying on the floor, I suppose.

[Lord Faulks]

Although it is tempting to go down that route and describe the cause or causes of the door being open—I was not in any position to argue that matter then—I think that we should return to the basic fact that, after careful consideration, 18 was considered the right age. Of course the noble Lord, Lord Kerr, is quite right: there is an element of arbitrariness about whatever age you choose. The question is: is it an age which has, by and large, received approval and consent? Yes it is. Of course that does not mean that this is the last word on the subject; people will differ about these things. There will be people who think that 21 was the right age and it should never have been lowered to 18.

Noble Lords will know that the power to determine the voting age for Scottish Parliament and local elections in Scotland was devolved to the Scottish Parliament, and the Scottish Parliament decided to lower the voting age to 16 for those elections. The Government have responded to requests to increase the powers of the devolved Administrations and will soon devolve similar powers to the Welsh Assembly.

Devolution, by its very nature, gives rise to the possibility of different laws applying in different parts of the United Kingdom. It does not mean that we must harmonise our differences. 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. One of the advantages of devolution is the capacity of different parts of the United Kingdom to make these choices.

More specifically, what about the precedent set by the Scottish independence referendum? The decision was made by the Scottish Parliament that whoever opened the door would decide on the franchise. It is right that decisions about the franchise for elections and referendums that affect the whole of Great Britain and Northern Ireland are made by this Parliament. As I said, decisions of the Scottish Parliament do not and should not prevent Parliament from taking a different decision.

The Government do not think that this is the right vehicle, as my noble friend Lord Higgins pointed out so cogently. Any change to the entitlement to vote must to be considered properly and fully in specific legislation. I gave some examples where the law places restrictions on 16 and 17 year-olds. Any proposal to lower the voting age must be carefully examined in that overall context.

[Baroness Royall of Blaisdon]

My Lords, I hear what the Minister says; indeed, in another place, the Foreign Secretary himself said that this was an argument for another day. Could the Minister assist me by saying whether, over the course of this Parliament—in the next four or five years—the Government might consider a change to the franchise?

[Lord Faulks]

I am not privy to all the Government’s thinking, but, no, I do not understand that that is on the horizon. Any proposal must be examined carefully: we cannot change the voting age and simply assume that it will have no implications for other areas where our law and our society treat 16 and 17 year-olds differently from their 18 year-old counterparts.

Noble Lords will wish to reflect on how this change would look to the public. I have no idea how 16 and 17 year-olds—were they to be given the vote—would vote. A number of people might guess and they might well be wrong. The noble Lord, Lord Tyler, said, in an exchange with my noble friend Lord Tebbit, that he thought that 16 and 17 year-olds were more likely to use their vote better than my noble friend Lord Tebbit. I am not quite sure what that said. Nor do I know how 18 and 19 year-olds are likely to vote. It is possible that a change in the franchise of such a radical nature—this is a radical change—will be perceived, rightly or wrongly, as some sort of attempt to affect the result of the referendum. We are anxious as a Government that, whatever the result of the referendum, the legitimacy of the process cannot be questioned. The safest way of doing that is to stick to the Westminster franchise and leave the vote at 18.

The noble Lord, Lord Wallace of Saltaire, who is not currently in his place, made a valiant attempt to say that we have opened the door by allowing Peers to vote or by the minor adjustment in Gibraltar. We are talking about millions; we are talking about a radical change. It is a change that not only would be radical, but would have the potential to affect timing. I am grateful to my noble friend Lord Hamilton for referring to the report of the Electoral Commission. Quite rightly, the commission did not offer a view on 16 and 17 year-olds, but it did, in addition to the paragraph to which he referred, say:

“The Commission’s view is that any changes to the franchise for the referendum on the UK’s membership of the European Union should be clear in sufficient time to enable all those who are eligible, to register and participate in the referendum”.

The noble Baroness, Lady Morgan, said, “Well, we could accelerate the process having regard to the fact that so many young people are aware of social media and could be brought up to speed with the issues”. However, as I understood the debate yesterday about registration, it was so important that we did not rush the procedure because people might be left off. It was far too important a matter to in any way accelerate. Therefore, if it affects the timing, which I understand to be very important in a number of contexts, that is a relevant factor. However, the crucial argument is that this is not an appropriate moment to make that change. In all those circumstances, I ask noble Lords not to press their amendments.

[Lord Stoddart of Swindon]

Could I ask a hypothetical question? I preface it by saying that I understand that the “leave” campaign wants to support this amendment. That might surprise some people: it surprised me. How firm are the Government in opposing this amendment? Let us suppose, for example, that the amendment is carried on Report and is sent back to the House of Commons, which already rejected this proposal. If it comes back to the House of Lords, and we insist on the amendment—after all, Monday indicated that this House is not only roaring; it is using its teeth as well—the Parliament Act would apply. What then would happen to this Bill? How long would it be delayed and what effect would that have on the timetable?

[Lord Faulks]

It is very tempting to hypothesise in the face of that invitation, but I am afraid it is an invitation that I am going to decline.

[Lord Kerr of Kinlochard]

I congratulate the Minister on an absolutely brilliant speech, of the kind that I used to try to write—a mandarin speech. All the phrases were there: “a dangerous precedent”; “not the right time”, and “unforeseen consequences”. When all failed at the Treasury, I used to resort to, “beyond the ambit of the vote”, which nobody understood, not even me. It was brilliant, but one thing that I thought was missing was the answer to the point made by my noble friend Lord Hannay, that we were not trying to alter the arrangements for elections. We were talking only of a one-off referendum. That seems to be quite a strong point. Will the Minister touch on that?

[Lord Faulks]

Of course, the noble Lord will recall that we had a referendum relatively recently, in 2011, about a change in the voting system—to introduce the alternative vote—which was on the Westminster model. The argument was very much, “Well, this is inevitable” or “This is a slippery slope”, to use the expression of the noble Lord, Lord Higgins, and that, by accepting the validity of the argument on the European referendum, it must follow, as night follows day, that we would then proceed to change the Westminster franchise. By accepting that argument, we would be reversing into an inevitable change in the Westminster franchise. There might or might not be an argument for doing that, but that is an argument that ought to take place in the fullness of time, with all available evidence, once all the matters that we have gone into and wanted to consider were available.

[Lord Tyler]

My Lords, this has been a very good debate. I do not intend to detain the House for long because, frankly, there will be a further opportunity to debate these issues. I just want to deal with one or two factual points. The noble Lord, Lord Balfe, said that the franchise is not being extended in this Bill. It is being extended, as my noble friend Lord Wallace of Saltaire said, and, indeed, there will be further debates about extending the franchise. I understand that it is Conservative policy to extend the franchise to UK citizens resident in the EU beyond the 15-year limit, so it will be very interesting to hear what is said about that.

The other issue, which is an important one, is about practicalities, of which the noble Baroness, Lady Morgan, spoke. I talked to the Electoral Commission and it is clear that it wants to have the longest possible lead time, so the sooner the Government decide to accept this amendment the better from the point of view of the commission. I am sure that they will do it eventually. MPs keep telling me that they will, so it is just a question of not leaving it too long. It is also true that we have the hard evidence of what happened in Scotland. The extension of the franchise to 16 and 17 year-olds proceeded remarkably easily, so there is no technical difficulty there.

I am intrigued to hear constant references to the difficulties of piecemeal changes to our constitution. The Government are about to change the relationship between the two Houses, if they can get away with it. That is what they are doing today. If that is not a constitutional change, what is? Then, what about EVEL—English Votes for English Laws? That is piecemeal. I thought that the Conservatives were actually in favour of incremental changes to our constitution. My study of history was that that was what Disraeli was all about—and very clever he was at it. So it is not an appropriate argument in this case to say that we cannot do this because it is not the ripe time—the doctrine of ripe time. That is what our ancestors in this very House argued right through the 19th century. I shall come back to that in a moment.

--- Later in debate ---

[Lord Collins of Highbury]

Well then, good, but I still think that people need an answer to that question. People are moving to obtain British citizenship and we have to be clear on the consequences of this.

This debate has been really interesting in highlighting how people see what being a British citizen is about. We will come on to this in the next group, so I do not want to do so now, but if we are to use the Westminster franchise—and there are good reasons for doing so, not least that if people have resided here for longer than five years, they have the opportunity to apply for British citizenship and therefore obtain the vote—we may see a big rush in those circumstances. The Minister has the responsibility for giving a clear reason why those people who have worked and lived in this country for a substantial time will not be able to vote on something which will clearly affect their futures in this country.

[Lord Faulks]

My Lords, Amendment 10, in the names of the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith of Newnham, and Amendment 13, in their names and those of the noble Baroness, Lady Royall of Blaisdon, and the noble Lord, Lord Dykes, would extend the franchise to EU citizens who had resided in the United Kingdom for five years or more. Amendment 15, in the names of the noble Lords, Lord Liddle and Lord Davies of Stamford, would also extend the franchise to EU citizens but would not impose a minimum time period for residency in the United Kingdom.

As has been pointed out, many EU citizens have made the United Kingdom their home and made significant contributions to life in this country. No one would wish to deny that but this is of course a vote about the future of the United Kingdom in Europe, so we say that it is right to use the parliamentary franchise as the basis. As my noble friend Lady Anelay explained at Second Reading, we are following the standard practice across Europe. As far as we are aware, no other European member state extends the franchise for referendums to citizens of other states—and there have been many such votes over the last four decades.

The noble Lord, Lord Hannay, spoke about the exceptional circumstances of this poll. This is an exceptional poll in some respects but it is not the only one with significant constitutional ramifications. Referendums in Europe have dealt with the ratification of EU treaties or the currency that a nation should use. These are not trivial issues, albeit that the noble Lord described them as less consequential. Even so, it is said that this is different as it deals with membership. But there have in effect been other in/out referendums: 17 EU member states held referendums about whether to accede to the European Union. Most recently, the Croatian people were asked in 2012. Others have voted not to, including Norway, while in 2013 the people of San Marino voted not even to apply. So far as we can tell, not a single one of those extended the decision to citizens of other states.

Noble Lords in effect suggested that the franchise should extend to include those EU citizens because they are affected by the results of the vote. This argument has its attractions but I respectfully suggest that it does not withstand careful scrutiny. First, why should this test apply only to EU citizens? Yes, the large French community in Kensington or the Portuguese in Stockwell will be impacted to some extent by the decision, but why should it stop at the United Kingdom borders? Surely Spanish citizens in Madrid would feel the effects of Britain leaving, as would the Maltese in Valetta or the Poles in Warsaw. The United Kingdom is a major global power and the EU is the world’s largest market with a population of over 500 million. If the United Kingdom left, a great many people around Europe would be affected to a greater or lesser extent. That hardly means they should all get a vote. Let me respectfully suggest that it is not enough simply to look at who is affected by a vote in order to decide who should take part. Furthermore, the United Kingdom would feel quite deeply the impact of further enlargement of the European Union. That does not mean that in future United Kingdom citizens should be able to vote in an accession referendum in Turkey or Albania or anywhere else that might join the European Union. We need to start elsewhere. That is why the Government brought forward proposals building on the general election franchise and that is the appropriate starting point for a decision of this kind.

As for the five-year residency threshold, the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, propose in Amendment 13 that it should be given to those who have resided in the United Kingdom for five years or more. This is a much more nuanced amendment than the other one. I wholly understand the noble Lord’s intention for this five-year threshold. No doubt many EU citizens who have settled here for many years feel a connection to the United Kingdom and the noble Lord is saying that we should give them a vote in the poll. Of course the longest resident requirement for EU citizens in order to qualify to apply for British citizenship is five years of lawful residence. After being free of immigration time restrictions for 12 months, an EU national can then apply for naturalisation to become a British citizen. So many EU nationals who meet the noble Lord’s threshold will be able, and have chosen, as the noble Lord, Lord Collins, pointed out, to take up British citizenship. I am sure many choose not to but that does not undermine the point that the option is open to them. Secondly, I draw attention to the practicality of identifying those who fall within the threshold. The franchise for local elections does not include any time limits on residency. Implementing such a limit would therefore be much more complex and time-consuming than simply using the local election franchise.

The noble Lord, Lord Davies, suggested it is unfair to exclude EU citizens when those from Malta, Cyprus or Ireland are included. I respectfully do not believe there is any actual inconsistency here. The inclusion of these three member states is not related to their position in the European Union. It is because Malta and Cyprus are part of the Commonwealth and there is a history of reciprocal voting rights, as between the United Kingdom and Ireland. The inclusion of Commonwealth and Irish citizens in the Westminster franchise is a long-standing part of the country’s constitution and it reflects the historical ties shared between the United Kingdom and the Commonwealth. This is a legacy of the Representation of the People Act 1918—the same legislation that extended the vote to women. We could hardly include some Commonwealth citizens and not others in the franchise. Of course there is a requirement of residency; I need hardly say. It would not be right to start unpicking the constitutional relationship between the United Kingdom and the Commonwealth.

Finally, noble Lords will want to reflect very carefully on how this change would look to the public. I entirely accept the point the noble Lord, Lord Hannay, made that this is not intended to affect the Westminster franchise but I return to the point that I made in relation to the first group of amendments, a point also made by my noble friend Lord Ridley. It is of fundamental importance that this vote is not just fair but seen to be fair. To appear, however innocently and whatever the reality behind the reasons, to be altering the franchise to change the result in some way risks undermining the effectiveness of the referendum. No doubt partly for these reasons, the proposals to include EU citizens in the franchise were rejected by large majorities in the House of Commons.

The noble Lord, Lord Wallace, asked whether I could help the House with how many EU citizens were actually on the electoral register. The statistic I have is that there are approximately 2.7 million EU-born citizens resident in the United Kingdom. The source for that is the World Bank’s estimate of migrant stocks in 2010, as updated by the UN Department of Social and Economic Affairs in 2013. I will endeavour to answer that question between now and Report; how successful I will be, I am not sure, but I will certainly endeavour to do so.

I was also asked what would be the consequences for EU nationals were the referendum to result in the United Kingdom leaving the European Union. As the House will know, the Government are confident that they will successfully negotiate a change in the relationship with the European Union and that the Prime Minister will then ask the country to confirm that we should remain a member of the European Union—albeit on somewhat changed terms. So what might happen to these EU citizens is entirely a hypothetical question, but noble Lords may well conclude that it is most unlikely that they would simply be cast loose, as it were, as is suggested.

[Lord Higgins]

I have been listening very carefully to the debate. Perhaps I may leave a thought with my noble friend. If the unfortunate circumstances arose where it turned out that the result was determined by this particular group or an accumulation of groups which have been controversial, that would obviously raise the question of whether the vote was valid in some people’s minds. Is it not therefore important that we should have a very clear definition of what majority is needed to deal with this situation?

[Lord Faulks]

I think my noble friend is referring to the possibility of some form of threshold. That is not part of the Government’s intention by the Bill. The point he alludes to is important, which is the risk, at least, that if EU nationals are given the right to vote—however cogent the reasons may be because of their participation in our national life—and the vote results by a narrow majority in our staying in Europe, the result of the vote may not command the same confidence that I am sure that all in your Lordships’ House want the referendum to command. In those circumstances, I ask the noble Lord to withdraw his amendment.

[Baroness Miller of Chilthorne Domer]

I deeply apologise if while the Chief Whip was talking to me I missed the Minister’s response, but I specifically tabled Amendment 18 on what work would be necessary and briefly spoke to it. Perhaps the Minister might be kind enough to address that; otherwise I will need to regroup my amendment with Amendment 14 next Monday.

[Lord Faulks]

I fear that in order to get a really adequate answer, the noble Baroness may have to regroup her amendment. I endeavoured to say that what might happen to EU nationals was a matter of hypothesis which I fear that the Government are not prepared to go into at this stage.

[Lord Hannay of Chiswick]

I am most grateful to the Minister for having responded in such a thoughtful way to this amendment, although I have to say that in earlier parts of his statement, I thought he was tempted back again to the reductio ad absurdum he employed on the previous group of amendments. However, we moved on to better ground and he addressed some of the arguments very well. He was very careful, though some others in this debate have been less careful, not to predict that we would know who voted in which way in the referendum, and be able to say, “It was the foreigners that did it”. Other Members of this House seem not to know that we have a secret ballot, but we do.

--- Later in debate ---

[Lord Collins of Highbury]

I did. I spoke to my noble and learned friend over the weekend and made it clear that we would not support these amendments, for the reasons that I am now stating. I do not want to delay the Committee any longer. Noble Lords have made their points, and the Minister talked about the arrangements since 1918. We have also made the point about the Good Friday agreement and the impact on that. I would be very keen to hear the Minister’s view about the impact on that agreement, and what the amendments might do to it.

I come back to the basic point that we need a debate. I hope that the report by my noble and learned friend will be reopened and reconsidered so that we have a debate. However, my noble and learned friend was not saying that we should take away people’s current entitlement. That is why the amendments cannot be supported.

[Lord Faulks]

My Lords, the purpose of these two amendments is to restrict the franchise for the EU referendum so as to prevent Commonwealth citizens who are the citizens of a country mentioned in Schedule 3 to the British Nationality Act 1981, and Irish citizens who are resident in the UK, from voting. As the Committee will be aware, this referendum will use the franchise for parliamentary elections, which includes this category of Commonwealth citizens—for example, citizens of Australia, New Zealand, India and Kenya—and Irish citizens who are resident in the UK.

This is fair and consistent with the precedents Parliament has previously agreed. For example, this franchise was used for the UK alternative vote referendum in 2011. It is also the franchise set out in the European Union Act 2011, which some noble Lords may remember, which provided for a referendum in the event of transfer of powers and competencies in certain circumstances. It was initially opposed by the Labour Party, but then, I think, there was a change of heart and Labour decided to support the legislation after it had been passed.

The Representation of the People Act 1983 refers to those entitled to vote at United Kingdom parliamentary elections. They include resident Commonwealth citizens and citizens of the Republic of Ireland. “Commonwealth citizens” is a wide term. The categories of persons who fall within the definition of “Commonwealth citizens” are set out at Section 37 of the British Nationality Act 1981. Commonwealth citizens include British citizens as well as those with other types of British nationality, including, for example, British Overseas Territories citizens and British subjects, as well as citizens of those countries listed in Schedule 3 to the Act.

The Act also sets out that, in order to be entitled to register to vote, a Commonwealth citizen must either have leave to enter the United Kingdom or to remain under the Immigration Act 1971, or not require such leave. Citizenship of the country of residence is the normal prerequisite for the right to vote in the elections of that country in most democracies. However, the rights of Irish citizens, and this particular category of Commonwealth citizens, in the United Kingdom are slightly different.

The reason for granting Commonwealth citizens and Irish citizens the entitlement to vote and stand in United Kingdom parliamentary elections lies, as a number of noble Lords have said, in the historical ties we share—as the noble Lord, Lord Wallace, pointed out. In the past, citizens of Commonwealth countries and Ireland were British subjects. As countries have attained independence, the rules on franchise have been maintained and updated. In the case of Ireland, there is a long-standing agreement of reciprocity of voting rights between the UK and Ireland.

When the British Nationality Act 1981 came into force the then Government gave an undertaking to preserve certain rights of Commonwealth citizens resident here, and this included the right to vote. I should remind the House that at a conference held in 1947, the United Kingdom and the Dominions agreed that each should recognise the others’ freedom to devise their own nationality laws, but that all persons identified by such laws as citizens should continue to hold the common status of British subject. Ireland also took part in that conference and a special status was laid down for the benefit of its citizens.

It was agreed that citizens of one country of the Commonwealth who were resident in another country should, within the limits of the new citizenship system and as far as local conditions allow, be given all the rights possessed by citizens of the country in which they are resident. As I have already pointed out, Malta and Cyprus are EU member states but are also members of the Commonwealth and, if they meet the requirements that apply to Commonwealth citizens, they can vote.

On the occasions when it has considered the issue of Commonwealth and Irish citizens’ voting rights—I understand that the noble Lord, Lord Green, said that it was not considered when the matter went through the other place—Parliament has taken the view that this should not be changed. We say that the referendum is not the place to disturb this franchise. There has been reference to what the noble and learned Lord, Lord Goldsmith, said in 2008 in his citizenship review. I had understood that the passage quoted by the noble Lord, Lord Green, suggested that it was right in principle not to give the right to citizens of other countries until they became UK citizens. That ought to be seen in the context of a wider debate about what it means to be a United Kingdom citizen. I am not suggesting that any vote should be taken away from those who already have a vote for those long-historical reasons. However, it is a view that he has extended by saying that he supports the amendment, and perhaps we will hear his views on Report on that matter. He is entitled to have them. There are strong, historic reasons which we say mean that we should maintain a historic connection and a historic franchise.

Suggestions have been made, both inside and outside Parliament, that one franchise or another would influence the vote in this referendum. I entirely agree—at the risk of repetition—with all those who have said, whether fanciful or not, that any suggestion of changing the franchise might be to the effect of altering the result and needs to be avoided. The referendum should command support. I remain of the view that we should maintain our parliamentary franchise for the EU referendum and continue to include Commonwealth citizens of the countries listed in Schedule 3 to the British Nationality Act 1981 and Irish citizens as part of this.

[Lord Forsyth of Drumlean]

Can my noble friend confirm, so that we are clear, the position with respect to referenda held in Ireland? Would British citizens living in Ireland be entitled to vote in Irish referenda or not?

--- Later in debate ---

[Lord Faulks]

I do not believe they would, but in case that is not an accurate answer I will correct it.

[Lord Forsyth of Drumlean]

If that is the case, what does reciprocity mean in this context?

[Lord Faulks]

Yes. There is reciprocity. If a British citizen lives in Ireland they have the right to vote there, but not in a referendum. The position is, therefore, that there are long-historical links. The noble Lord, Lord Wallace, asked a question which I cannot answer now. However, I shall endeavour to provide the answer in due course. The amendments have once again provoked an interesting debate, but in the final analysis I suggest that we should stick to the parliamentary franchise, and I ask the noble Lord to withdraw the amendment.

[Lord Green of Deddington]

I thank noble Lords. It is late enough. I beg leave to withdraw the amendment.

Maximum Number of Judges Order 2015

Lord Faulks Excerpts

Tuesday 27th October 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Maximum Number of Judges Order 2015.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

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

My Lords, the effect of the draft order is simply to increase the number of Court of Appeal judges by one. That number is set by statute under Section 2 of the Senior Courts Act 1981, which currently provides for a maximum of 38 Court of Appeal judges.

In March 2015 Lord Justice Pitchford, an existing Court of Appeal judge, was appointed by the Home Secretary to lead the inquiry into undercover policing and the operation of the Metropolitan Police’s Special Demonstration Squad. The inquiry, which began on 17 July 2015, was established under the Inquiries Act 2005 and is anticipated to conclude at around the end of 2018. Having been appointed as such, Lord Justice Pitchford remains a Court of Appeal judge and is counted in the current complement of 38. However, he is unable to fulfil any duties in the Court of Appeal while he leads the inquiry.

In order to ensure that the total number of Court of Appeal judges available for deployment remains at current levels, it is necessary to increase their number by one. There is no other method for revising the number of Court of Appeal Judges other than by an order such as this. I therefore commend this draft order to your Lordships and beg to move.

[Lord Beecham (Lab)]

Could the Minister indicate whether it is intended to retain the maximum number at 39? Is it a permanent provision? It would be perfectly sensible if it were, but it is not quite clear to me whether that is the case. Secondly, while he cannot commit himself or those appointing a member of the Court of Appeal, I would hope that whoever makes the decision does not follow the line laid down by Lord Sumption recently about appointing women to the Supreme Court. We could do with more women in the upper and indeed the lower branches of the judiciary, and I hope that this will be an opportunity for those making the appointment to take with as good a grace as possible.

[Lord Faulks]

On the noble Lord’s first question, the position is that Lord Justice Pitchford turns 70 in March 2017 and must at that point retire as a Court of Appeal judge. It is anticipated that on his retirement, or at the end of the inquiry, if that is sooner, a similar order to this one will be made, returning the number of judges to the Court of Appeal back to 38.

I turn to the second point made by the noble Lord. He referred to the issue of diversity, which is of course important to the public’s confidence in justice. It is harder to boost diversity in the Court of Appeal in the short term, as the majority of eligible candidates come from the ranks of High Court or deputy High Court judges of at least seven years’ qualifying experience, but the Lord Chief Justice and Lady Justice Hallett are leading work to increase the diversity of applicants at key feeder grades for the higher judiciary—namely, recorders and deputy High Court judges. I am sure that he will welcome the appointment on 22 October, last Thursday, of two female High Court judges, one of whom will be the first Asian woman to sit at this level. When sworn in, they will take the number of women High Court judges to 23 out of 108, which is 21%. The Government are absolutely committed to increasing diversity, and whatever Lord Sumption may or may not have said about the reality, the Government are acutely conscious of the need to do that and are taking steps to ensure that we can realise that ambition.

This is a reasonable amendment, which maintains the complement of Court of Appeal judges when one of their members is engaged, as is Lord Justice Pitchford, in important work elsewhere. I hope that noble Lords will agree the proposed amendment and I beg to move.

Motion agreed.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Faulks Excerpts

Friday 23rd October 2015 Lords Chamber

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

My Lords, I begin as others have done, by congratulating the noble Baroness, Lady Cox, on bringing this matter for debate in the House today. I, of course, share the admiration of all noble Lords for her tenacity. I also share in the admiration for those women who have given the evidence, often at great risk to themselves, which has provided much of the momentum behind what the noble Baroness has done in drawing our attention to the problems that undoubtedly exist in society now. The Government share her support for women’s rights and access to justice and her concerns for the victims of domestic violence. We are fully committed to protecting the rights of all our citizens.

The noble Baroness’s Bill is driven by a concern that sharia law principles, as applied in the decisions by sharia councils in the United Kingdom, are being used as an alternative to the legal process, resulting in the unfair treatment of women, the condoning of domestic violence and other abuses, and the undermining of equal rights and protection under the law. The measures in the Bill would, however, apply to a range of arbitration and alternative dispute resolution services, including those provided by arbitration tribunals, religious councils and boards and independent family mediation services, many of which are regulated by the independent Family Mediation Standards Board. Although these bodies and services are not identical, the overriding principle is that they must operate within the rule of law in the United Kingdom, a point made by a number of noble Lords throughout the debate and particularly by my noble friend Lord Kalms.

My noble friend Lady Buscombe asked about the future of the jury system and the personal beliefs of judges who might be appointed. She and the House will be well aware that judges take an oath to apply the law, as do jurors when deciding a particular case. There is a long and worthwhile tradition of jury trial in this country and I would not seek to say at the Dispatch Box that that should be diminished.

[Baroness Buscombe]

I would say wholeheartedly that our jury system should not be diminished. My concern is that a growing number of people who sit on our juries do not share our beliefs in one rule of law and system of justice and equality of rights for women. They therefore may have a different view as to the outcome of cases that they preside over or sit upon.

[Lord Faulks]

In this country, at the moment at least, we do not have jury panels questioned by lawyers to find out what their views and prejudices are. I would be reluctant to embark on that exercise. However, I understand my noble friend’s concerns. They are matters on which opinions can reasonably differ.

There is one Muslim arbitration council, established in 2007, which operates in five English towns and cities and which applies a form of sharia law. We do not know exactly how many sharia councils or similar bodies are in operation or have the full picture of their activities and outcomes. I would like to assure the noble Baroness that the Government take the concerns raised about some of these councils very seriously and are committed to understanding more about the problems identified.

That is why, as part of the Counter-Extremism Strategy announced earlier this week, the Home Secretary has said that she intends to commission a full, independent investigation into the application of sharia law in England and Wales. I am grateful to my noble friend Lord Blencathra for reading out paragraphs 17 and 18 of that document, which show conclusively that the Government have taken on board many of the factors which have been featuring in this debate and that they intend to commission an independent report. Of course, the announcement was made only this week. I am acutely conscious of the tendencies referred to by the noble Lord, Lord Anderson, along with all the Chilcot-ian observations made by my noble friend Lord Blencathra about the necessity to consider widely and not simply to provide a preliminary view of these matters. On the question of legislation, I do not want to prejudge anything the inquiry may find, although certainly legislation may be an option. But that is a matter which will be considered in due course. The investigation will enhance our understanding of any ongoing misuse of sharia law and the extent of the problem where it exists.

The Government are also facilitating a range of initiatives and working with others to promote integration in our society and the equality of all women. However, the Government do have reservations as to whether the measures in this Bill are the best way forward in tackling the undoubted problems identified. But first let me make it clear that, regardless of religious belief, every citizen is equal before the law. Decisions taken as part of an alternative dispute resolution are not binding in law, save in limited circumstances in civil matters which are carried out under the Arbitration Act 1996, and which are subject to the safeguards of the Act and recourse to the courts. In addition, criminal matters and certain types of family disputes, such as those over the custody or welfare of children, cannot be arbitrated and can be decided only by the courts. Many couples choose to resolve their difficulties between themselves, sometimes with the assistance of lawyers, mediators and other third parties. People may wish to apply their religious principles to the resolution of disputes, and it is right that they have that choice. The Government are keen to promote the continued use of non-court dispute resolution services to resolve family disputes.

While we agree entirely with the noble Baroness that the necessary standards and safeguards must be in place, at the moment we do not agree that the law needs changing to facilitate this, because relevant and specific protections are already in place in common law and in existing legislation.

[Lord Elton]

My Lords, the concern is not that the law is in place but that it is not understood and therefore is not working. If it is not understood and known, it is no use whatever. My noble friend’s intention is to bring this to public attention. I am sure that he has this in mind, but I would like to hear that he has.

[Lord Faulks]

Let me reassure my noble friend that of course it is well understood that one of the main burdens of the debate has been the lack of awareness of the law. There is a rather strange legal maxim that every citizen is deemed to know the law, but that is often not the case in the sort of communities that we are concerned with. I accept entirely that increasing awareness is vital to avoid some of the difficulties which have been highlighted in this debate.

[Lord Sheikh]

Does my noble friend appreciate that there are certain women who obtain a decree absolute but who may not wish to remarry unless they can get a talaq? We need sharia councils so that women can approach them for a talaq.

--- Later in debate ---

[Lord Faulks]

The Government wish people to make free choices on these matters. If someone wishes to make a choice of their own volition, it is no business of the Government to interfere with that. But we also wish to have a system where women, and men if necessary, feel free to make those choices without undue pressures of one sort or another.

Let me be a little more specific about the legislative provisions. The Equality Act 2010 prohibits discrimination on the grounds of gender. The Criminal Justice and Public Order Act 1994 prohibits the intimidation of all witnesses, including victims of domestic violence. The Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules other than the national law to be applied by the arbitral tribunal to that dispute. I ought to declare an interest as a fellow of the Chartered Institute of Arbitrators, although I have never arbitrated on the sorts of disputes which this debate has been focusing upon. Religious law considerations may be applied in the context of an arbitration only where, first, the parties have specifically agreed to the arbitral process, and secondly, where all the parties have specifically chosen to use religious law considerations. But even then the decisions of such tribunals is subject to review by the courts of England and Wales on a number of grounds. If any of the decisions or recommendations were in direct conflict with a mandatory provision of national law, the law of England and Wales must always prevail.

The Arbitration Act sets out a number of safeguards, including a duty for arbitrators to act fairly and reasonably between parties. No one should feel pressured or coerced into resolving their dispute in a particular way. Any member of any community has the right to refer to a civil court in England and Wales at any point, particularly if they feel pressured or coerced to resolve an issue or to accept a decision that is unfair or unlawful. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.

I return now to the point made by my noble friend Lord Elton. That is not to say that all our citizens have equal knowledge of access to their rights within the national law or that other measures cannot be taken to improve the situation. It is the Government’s view that the problems raised by the noble Baroness are due to a lack of awareness of rights, unequal access to the law and barriers to integration rather than a lack of protection within the current law. Integration requires changes to society, not necessarily changes to the law. The issues and barriers involved are often complex, and solving these problems is not just a job for the Government. It is also important that communities and community organisations take the lead in supporting equality and integration and help to raise expectations and awareness so that the rights of women and of all citizens are understood and protected.

[Lord Cormack]

I am grateful to my noble friend, who is disappointing me a little. Does he not feel that the Government have a duty to promote awareness? It is all very well saying that people should be more aware—we can all agree on that—but do not the Government have a role in this?

--- Later in debate ---

[Lord Faulks]

Indeed, and if my noble friend will bear with me, I will come to some of the steps which have been taken by the Government to promote awareness.

The noble Baroness raised the specific issue of domestic violence. We are determined to do all we can to tackle this dreadful form of abuse and to ensure that anyone facing the threat of domestic abuse has somewhere to turn to. In the past, it has often been either ignored or given insufficient priority. We have maintained funding of £10 million for the 2015-16 period for core domestic abuse services and national helplines. We have recently invested a further £10 million to maintain a national network of refuges, and £3 million to boost the provision of domestic violence services. A new offence of coercive or controlling behaviour has been put into the Serious Crime Act 2015 to ensure that manipulative or controlling perpetrators who cause their loved ones to live in fear will face justice for their actions. The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims.

The noble Baroness also highlighted the concern over religious marriages which are not legally valid in England and Wales and so do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of this problem and are working with others to increase integration and awareness within communities. Many noble Lords will know that the Law Commission is currently undertaking a preliminary scoping study to prepare the way for potential future reform of the law concerning how and where people can get married in England and Wales. The commission is due to report on its initial findings by December of this year and the Government will then consider the next steps.

I turn now to the specific proposals included in the Bill. As to Part 1, we do not consider a change to the Equality Act 2010 so that it applies to arbitral tribunals to be necessary. Section 33 of the Arbitration Act already imposes a duty on arbitral tribunals to act fairly and impartially. Awards can be challenged in court if this duty is breached or if there is any other serious irregularity. Section 142 of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations, including those facilitated by religious councils if they were discriminatory.

The Bill also proposes amending the public sector equality duty to create a requirement to raise awareness of the consequences of unregistered religious marriages and polygamy. We do not think that that is the best way to address this issue or that it would be appropriate to use the duty in this way. It is a deliberately broad duty and we are concerned that this breadth of application could be undermined if specific requirements of this kind were to be separately identified within it.

As to Part 2, on the proposed changes to the Arbitration Act 1996, tribunals already have a mandatory duty, to which I have referred, to act fairly and impartially. It is already the common law that criminal acts as regards child custody and welfare cannot be arbitrated.

On Part 3, on the proposed changes to the Family Law Act 1996, we believe these to be unnecessary as contracts are unenforceable if made under duress. A judge will not make an order based on a negotiated agreement unless he or she is satisfied that there was genuine consent.

On Part 4, on the proposed changes to the Criminal Justice and Public Order Act, Section 51 of the Act already makes intimidation or harm of those assisting an investigation—witnesses and potential witnesses—an offence, including witnesses of domestic violence. The Criminal Justice and Police Act 2001 contains similar offences which protect witnesses in civil proceedings and the intimidation of witnesses or others may also be punishable under common law offences of perverting the course of justice or contempt of court.

Finally, I turn to the proposed new crime of falsely claiming legal jurisdiction. It would require strong evidence that this is so, and a widespread and proper consultation before considering a new criminal offence and assessing whether it is genuinely necessary. There is not yet strong evidence of this. It may be that the investigation will find it.

In summary, the Government well understand the noble Baroness’s concerns and are committed to finding out more about how sharia councils are working in this country, to tackling domestic abuse and supporting the victims of abuse, and to working in partnership with communities to promote integration and increase awareness of rights and equal access to justice. We think that these initiatives are best placed to help address the serious problems and issues raised rather than the changes to legislation proposed in this Bill.

The Government are engaged in a range of work to facilitate integration. A number of noble Lords emphasised the importance of integration, particularly the noble Baroness, Lady Flather. This includes, in 2014-15 alone, the provision of £12 million to support 30 projects and to help build strong, united communities, reaching more than 335,000 people. Over three years, £8 million has been invested to support 33,500 isolated adults to learn English. The importance of monitoring education was emphasised by the noble Lord, Lord Taverne. This is aimed particularly at Muslim women who are unable to take up all their rights due to lack of English. Since 2011, £8 million has been spent on the Near Neighbours programme and more than 994 local projects, bringing faith and ethnic groups together and benefiting more than 750,000 local people. The Government Equalities Office is also driving government and wider action to empower all women socially and economically. We are ensuring that diverse women’s voices are heard at the highest levels of government.

To conclude, the Government are not convinced that introducing the measures proposed in this Bill represents the best way forward. As a Government, we are fully committed to protecting the rights of all citizens and there is legislation in place to uphold those rights. I acknowledge the point made by the noble Lord, Lord Carlile, that there may be no harm sometimes in underlining matters, which I think is the burden of what he was submitting. The rights of all women and vulnerable groups must be promoted and protected. The Government are taking forward a number of initiatives, as I have told the House, to help facilitate this.

In the course of the debate, there was considerable reference to culture and the danger that there can be of cultural relativism, and of being too timorous by acknowledging cultural differences to tackle what can be real discrimination. This is a matter which the Government have identified and many noble Lords may have heard what the Prime Minister said at the Conservative Party Conference about the dangers of “passive tolerance”, to use his expression. This is an important acknowledgement that for too long we have sometimes provided exaggerated respect for so-called cultural differences, notwithstanding the very real hardships that can be caused by members of the community who live under our law.

I will, I fear, sentence myself to the less attractive of the two options presented by my noble friend Lord Cormack—either to be carried shoulder high from the Chamber or to slink away ashamed at my failure to respond to the noble Baroness. However, although the Government express reservations about this Bill, they express no reservations at all about the issues and the importance of the issues that have been identified by the noble Baroness. She has done the House and the country a great service by bringing them to the attention of this House and more widely. She has contributed greatly to raising awareness. I hope she feels reassured by what I have said and by the Home Office’s response in the Counter-Extremism Strategy that we have these matters very much in mind. She deserves our congratulations and I thank her and all noble Lords for their contributions to this important debate.

Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Lord Faulks Excerpts

Wednesday 14th October 2015 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, in the days when one was allowed to use Latin in court, counsel and judges sometimes delighted in the phrase res ipsa loquitur: the facts speak for themselves, or, the answer is obvious. For the reasons given by every single person who has spoken thus far in this debate, that phrase applies to the Motion. I shall not repeat the reasons, but I shall support the Motion if I have the opportunity.

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

My Lords, I thank all noble, and noble and learned, Lords who have spoken in this debate, in which, although it was short, strong feelings have been expressed and cogent arguments advanced about the criminal courts charge. The Secretary of State for Justice has developed a reputation—referred to by the noble and learned Lord, Lord Woolf—for listening to the arguments and approaching with boldness and imagination the often difficult challenges that justice and paying for the cost of justice present. Although I cannot promise the House an immediate review of this matter, I can promise that all the speeches made today will be carefully heeded by the Secretary of State for Justice. He will be considering them extremely carefully.

Let me deal with some of the points that have been made, succinctly but powerfully. First, on judicial discretion, this was one of the arguments that came before both Houses when the Bill was going through Parliament. Indeed, I was the Minister who took the relevant clauses through. The argument—except from the noble Lord, Lord Ponsonby—was not that there are no circumstances in which it is appropriate for a defendant to pay the costs of their appearance in court, but that there should be some discretion. The Government believe that convicted adult offenders should take responsibility and contribute towards the costs they impose. If they do not, of course, the cost is paid by the taxpayer. The criminal courts charge is intended to ensure that offenders take a greater share of the burden, currently borne by taxpayers, of funding the criminal courts.

Imposition of the charge is purely about recovering costs. It is not a punishment and therefore should not be treated as part of the offender’s punishment in any way. Therefore, it would not be appropriate for a discretion to be exercised. The noble Lord, Lord Ponsonby—parting company from a number of other noble Lords—said that he did not accept that any cost should be imposed on a defendant for appearing in court. One of the reasons he gave was that in some way, it would be rather invidious, because a judge or magistrate might be perceived as having some form of financial interest in the outcome of a case. Although I think the noble Lord accepted that that would not be much of a factor in reality, he was in a sense making an important point: that judges and magistrates should not be able to choose whether to charge for the use of a court, as it were, and that it would therefore not be appropriate for there to be a discretion.

I understand entirely that it is most important that the courts charge framework means that offenders are given a fair and realistic opportunity to pay the charge. Although a court does not have discretion in terms of the charge itself, it does have discretion to consider an offender’s means and set payment terms at affordable rates. Offenders will be able to contact a fines officer at any point to request variations in payment rates if their circumstances change. At such points the courts and fines officer will have an opportunity to take existing debts into account, making sure that repayment is reasonable and affordable, given the offender’s individual circumstances.

The criminal courts charge legislation also gives the offender the opportunity to have the charge remitted after two years where the offender takes all reasonable steps to pay it and does not reoffend. It will be for the courts to decide whether all reasonable steps have been taken, having regard to the offender’s personal circumstances. Here matters such as unemployment, interruptions to benefits payments or poor health can be taken into account.

Noble Lords were concerned about the possibility of there being an inducement to plead guilty. Of course, that is a highly relevant consideration. Defendants facing trial are not required to pay the criminal courts charge; they will be subject to the charge only if they are convicted following a hearing, or of course if they plead guilty. It is always a delicate matter whether defendants plead guilty to an offence of whatever seriousness. The noble Lord, Lord Beecham, and others have acknowledged the fact that it is well known that a discount—often of a third—will be given to a defendant who pleads guilty, and it will depend on the precise juncture at which that defendant pleads guilty. Pleading guilty at the first possible opportunity will obtain the maximum discount. An experienced legal adviser, such as the noble Lord, Lord Beecham, will approach the question of an appropriate plea with delicacy and will not of course encourage a defendant to plead guilty if there is a defence. Indeed, they will go further than that and tell the defendant that they should not plead guilty to an offence they have not committed. We believe that the delicate matter should not and will not be distorted by the question of a criminal courts charge.

Let me deal with the point that perhaps can be summed up by the principle of totality, which those of us, like me, who have had to sentence defendants have borne very much in mind. It is true that, very often, where there are a number of different sentencing options on the menu and more than one has to be prescribed, a judge will try to make sure that, in the round, the penalty or combination of penalties is meted out that is appropriate to the offence. I understand why certain magistrates have been rather more lenient than they might have been, obviously had there not been the criminal courts charge, but that is not what the legislation provides and is not something that should be done.

The criticism is also advanced that there was a lack of parliamentary oversight in relation to these provisions, and the suggestion is that the statutory instrument severely limited that oversight. There is nothing improper about the time in which the regulations were laid. I can assure noble Lords that the criminal courts charge provisions underwent considerable scrutiny. I can personally testify to the level of scrutiny they underwent in this House. I have looked back at Hansard for the House of Commons, and the principle and the appropriateness of a criminal charge were considered in debates. The question of the actual level of the charge is a different matter—I see the noble Lord, Lord Beecham, grimacing. I wholly understand that there is a distinction.

However, the concerns raised in this Motion regarding discretion and the effects on plea decisions are points that were carefully considered and debated at considerable length at the various stages during the consideration of the Bill in both Houses. As to charge levels, draft charge levels were also published to inform parliamentary and public debate, the charge levels set out in the regulations being a slightly adjusted version reflecting up-to-date costing information. I do not consider that the Government at the time behaved improperly by laying the regulations when they did, especially in light of the significant amount of scrutiny that took place generally on the principle. It may be that magistrates expected there to be a greater amount. This was a difficult attempt to try to cost the use of the courts. The victim surcharge is another mandatory charge—there is no discretion—which was introduced in 2007 by the then Labour Government.

On the question of benefits assessment, regarding the suggestion that claims on savings cannot be substantiated, an impact assessment was published when the Act was introduced early last year that was based on indicative charge levels. Significant work was then carried out to assess the costs of running the criminal courts, which resulted in the publication of the draft charge levels I have previously mentioned. This was published as an addendum to the original impact assessment and included an updated analysis of the benefits and costs of the policy. An updated impact assessment was produced to accompany the regulations and has now been published. It includes a considered analysis of the benefits and costs of the provisions, estimating total cash inflows arising from the charge at £95 million from 2019 to 2020.

A number of noble Lords remarked on the unfortunate response of a large number of magistrates. I agree with all noble Lords who have emphasised the importance of magistrates and what a vital task they perform for society in general, and we are of course concerned that any magistrates should not feel confident in the provisions of sentencing and indeed other provisions that they have to administer. Of course I have read about and the Government are well aware of those magistrates—reported in the media to number something like 50—who say that the courts charge was certainly one of the reasons for their resignation. Just for context, I should say that I understand that 350 magistrates have resigned in the relevant period, and of course others will have retired. They may have myriad reasons for doing so. However, I do not want to underestimate the significance of the general discontent referred to by the noble Lords, Lord Rooker and Lord Ponsonby, and others. The Secretary of State and the Ministry of Justice take that matter very seriously.

I also bear very much in mind what a number of noble Lords have said about the importance of rehabilitation. We do not believe that this will be an additional barrier to rehabilitation. The Government are extremely concerned that rehabilitation should be at the heart of reforms to our sentencing provisions and indeed in the way in which the prison service will, we hope, be changed in the following years. I should say that failure to pay the court charge will not extend the time it takes for a conviction to become spent for the purposes of the Rehabilitation of Offenders Act 1974. I take the point made by the noble Lord, Lord Ponsonby, that it is important that defendants feel that they have been dealt with fairly, and that itself can be relevant to their rehabilitation. However, we consider that setting the repayment rate fairly and proportionally according to each offender’s individual circumstances, as long as they provide the court with the details, should mitigate any sense they have of unfairness which may follow the criminal courts charge.

Property Boundaries (Resolution of Disputes) Bill [HL]

Lord Faulks Excerpts

Friday 11th September 2015 Lords Chamber

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

My Lords, I congratulate the noble Earl, Lord Lytton, on securing a Second Reading for his Bill on this important issue.

As the noble Lord, Lord Kennedy, indicated, we had a debate, initiated by the noble Earl in January this year, in which many of the issues that have been discussed today were canvassed. That is nothing but to the good. Similarly, I have had an opportunity to meet with him and others who are concerned with the issues that the Bill generates. I am grateful for that opportunity, and for the noble Earl’s acknowledging his engagement with officials in my department.

The Bill’s core aim is making it easier to resolve boundary disputes. It proposes to do this through a system like that adopted in the Party Wall etc. Act 1996, which would require disputes about the exact location of a boundary between adjoining properties in England and Wales to be referred to a surveyor or surveyors acting as independent adjudicators for final determination, subject only to a right of appeal to the Technology and Construction Court.

Pausing there, I note that the noble Earl has been in communication with Sir Antony Edwards-Stuart about the suitability of the TC court as a venue for appeals. He has indicated that he does not think it appropriate but makes some useful suggestions. I am sure that, if the Bill were otherwise to proceed, the precise venue for an appeal is something that could be satisfactorily concluded.

The Bill also proposes to apply this system to disputes relating to the location and extent of private rights of way.

The noble Earl considers that the procedure proposed in the Bill will make dispute resolution simpler, faster and more cost-effective. These are laudable aims, which the Government share. Indeed, we have made, and continue to make, considerable efforts to control the cost of civil litigation to ensure that the costs incurred are proportionate to the subject matter of the dispute. However, we have significant reservations about the extent to which the proposals contained in the Bill would in fact improve matters. Indeed, we are concerned that they could have the unfortunate effect of making the resolution of these disputes more complex and costly than at present.

A similar Private Member’s Bill relating to the resolution of boundary disputes was introduced in the other place in 2012 by the honourable Member for Dover, Charlie Elphicke. In the light of the concerns that that raised, the Government decided to carry out an initial scoping study, the results of which were published on 15 January this year. The core conclusions of the scoping study were that there would be merit in the Government carrying out further work to assess the feasibility of improving a number of aspects of the current system, including, in particular, the use of mediation and expert determination, the spreading of best practice and the provision of better information, but that more radical reform, such as that proposed in this Bill and its predecessor, would not currently be justified.

The noble Earl’s Bill differs in some important respects from its predecessor and, in particular, extends to disputes about the location and extent of rights of way. These were not considered in the scoping study to which I have referred.

Before I update the House on the steps the Government have taken since the publication of the scoping study in considering improvements in the current system, I would like to focus on what we see as the core difficulties with the approach proposed by the noble Earl.

Responses to the scoping study confirmed that boundary disputes can arise for a number of reasons. Although some disputes may follow an unprincipled unilateral annexation of a strip of land, many more will derive from two honestly held beliefs—or fairly honestly held beliefs—as to where the boundary lies. At the root of these divergent views will frequently lie a conveyance that is poorly drafted or, at least, does not define the property to be transferred with sufficient clarity and precision. Because of this, such disputes will ultimately hinge on the legal question of who owns a particular piece of land or is entitled to exercise a particular right of access, and will fall to be decided on the interpretation of the evidence in the light of the law. In particular, the outcome will depend on the interpretation or construction of legal documents, such as conveyances and the plans incorporated in them.

I do not, in any way, wish to downgrade the very substantial contribution that surveyors can and do make to the resolution of these disputes. It is of course the case that judges will often rely to a considerable extent on the advice and expert evidence that surveyors provide.

In answer to the question raised by the noble Earl—is a boundary line a technical issue or a legal one?—a technical assessment of where a boundary lies is, in part, a surveying exercise. It would be unusual not to consider the lie of the land. However, this is not the whole story. The line of a boundary is ultimately a legal issue. I note the distinction that the noble Earl has made but am afraid that I am not entirely convinced by it.

The kind of dispute with which we are concerned is one that the courts and the land registration division of the property chamber of the First-tier Tribunal are designed to determine. I entirely agree with all speakers in this debate who confirmed that surveyors have great expertise in this area. However, a surveyor, no matter how expert in technical issues, will not be able to give a ruling that is conclusive in legal terms and will not necessarily have the legal expertise to deal with the complex legal issues that might arise; of course, I include adverse possession in this. This in itself would make it likely that many decisions would be appealed—this is my answer to the point made by the noble Lord, Lord Kennedy. That prospect becomes even more likely when one takes into account the considerable bitterness and antagonism that such disputes can generate.

I agree with all noble Lords who have expressed the view that it is far better that these matters are resolved out of court by simple arbitration or the involvement, perhaps, of one surveyor in a relatively informal context. However, as a number of noble Lords have pointed out, the reality is that these disputes can escalate and often involve costs that are out of all proportion to the amount in dispute. I fear that the mere interpolation of a process, which this Bill envisages, will not prevent those determined to see these disputes carried out to the bitter end.

The comparison with party-wall cases is of course important. However, unlike party-wall cases, boundary disputes are generally likely to produce a winner and a loser. Therefore, the chances that a loser will be determined to vindicate his or her view of what is right by bringing an appeal are high. A rigid system requiring referral in all cases at an early stage to the process, as set out in this Bill, could also serve to raise the stakes in the dispute, increase hostility and entrench attitudes.

Taken together, these points would mean that the Bill would simply add a further layer to the proceedings, which would increase the costs involved rather than reducing them. In addition, in some cases, the early appointment of experts could itself front-load costs where the dispute might have been resolved in other ways.

We believe that a more effective and proportionate approach is to look at practical procedural improvements to the current system, rather than undertake a radical overhaul. With that in mind, we are exploring the scope for improving court and tribunal procedure, encouraging the use of mediation and expert determination, and improving the availability of information on ways to settle disputes. We are in the process of developing firm proposals in the light of our discussion of these issues with the relevant bodies. As we announced in the report on the scoping study, we aim to announce our emerging conclusions before the end of the year.

I note, of course, that the noble Earl quite fairly said that the date for the Second Reading of his Bill was rather beyond his choice. I think he might accept that, in some ways, he would have been a little happier if it had come after the scoping report had been concluded. Be that as it may, I hope he will be reassured by the fact that the matters raised by his Bill are receiving serious consideration by the Government.

The noble Earl, Lord Kinnoull, with whom I shared the experience of studying Roman law at Oxford—there is some comparison with these issues—referred to the inequality of arms that quite often prevails in these disputes and which can result in their escalation. It is difficult to avoid that, whatever particular procedure we adopt. He also quite rightly made the point that surveyors are often particularly useful in resolving these disputes because of their skills in relationship management. That, of course, is a valuable quality in any profession, as I am sure he would agree.

The noble Earl said that the disputes are often factual, not legal. I agree with him to some extent. They are a bit of both: both fact and law. He referred, as did a number of other noble Lords, to the fact that the judiciary tend not to welcome such disputes. That is true. In my own experience, I have seen that judges, knowing that they are facing a boundary dispute, do not jump for joy at the prospect of the decision they will have to make. But not all judges, despite the quotations that we have received, share this lack of enthusiasm for boundary disputes. Indeed, the noble and learned Lord, Lord Hope, who spoke in the debate in January, told the House that he found them extremely interesting. He also, valuably, pointed out some of the advantages that there were in Scotland in resolving these issues, and in his careful consideration of the noble Earl’s Bill said that,

“I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues”.—[Official Report, 15/1/15; col. GC 267.]

The noble Earl, Lord Kinnoull, asked me three questions. I think that I have dealt with the party wall issue and the comparison, which I respectfully suggest only goes so far. On the status quo not being satisfactory, we are well aware of the difficulties and, as I have indicated, are considering them.

I am sure that many noble Lords have similar experience of potentially difficult and expensive disputes to that of my noble friend Lady Gardner, and the Government share her desire to do all we can to limit the expense and heartache which such disputes can cause. The noble Earl, Lord Erroll, spoke of the immense complexity that is sometimes involved in such disputes. I cannot of course comment on the particular problem that he outlined in detail, but I detect that what he was suggesting was that, if there is to be a change in the law, it would be good if it embraced as many of the potential difficulties such as those which he has described.

We are grateful to all noble Lords who have taken part in this dispute.

[Noble Lords]

Oh!

[Lord Faulks]

I mean this debate—I am most grateful. I hope that my comments in this debate will reassure the noble Earl, Lord Lytton, and others who have spoken that the Government are committed to ensuring that boundary disputes can be resolved fairly and effectively and to minimising the adverse impact of adversarial behaviour and entrenched positions. We believe that the work that we are undertaking represents a more effective approach than radical reform of the law, which the Bill suggests. While the Government will not oppose the Motion to give the Bill a Second Reading, for the reasons that I have given we have reservations about the changes to the law that it proposes.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015

Lord Faulks Excerpts

Wednesday 9th September 2015 Lords Chamber

Moved by

[Lord Faulks]

That the draft regulations laid before the House on 25 June be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 September.

Motion agreed.