Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Faulks and Lord McNally

Committee: 1st sitting (Hansard): House of Lords
Tuesday 21st November 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords, the noble Lord, Lord Lennie, was very quick off the mark: the noble Lord, Lord McNally, and I wanted to make brief interventions. It seems that the case made for these amendments is a pretty strong one, but of course I will listen with great interest to what the Minister has to say. It might be said, I suppose, that the amendment put forward by the noble Baroness, Lady Northover, is more or less understood by the other two amendments. I simply say to the Minister that it might be helpful if he could give some example, prospectively, of where a Minister might think this action “appropriate” but not “necessary”. That would help to clarify the Committee’s thinking.

[Lord McNally (LD)]

My Lords, I agree that the noble Lord, Lord Lennie, was a bit quick off the mark. Just have a glance behind you occasionally—you might find that somebody wants to come in.

I was rather diffident about putting my name to such illustriously signed amendments. My noble friend Lady Northover spoke about the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge. I am not sure that I would trust the country solicitors “Judge and Pannick” or “Pannick and Judge”; I am not sure whether it is best to panic after you have judged or judge before you panic. Nevertheless, any sensible Minister who sees those names on an amendment thinks very hard about it. Of course, as the noble Lord, Lord Lennie, said, this will be a very necessary Bill if the Government succeed in their Brexit aims, but that does not mean that every Bill that comes before us has to be given a nod through because of the pressures of the Government’s own making. There is a real danger.

I can almost imagine the discussions in the Cabinet Office: “How on earth do we get this shedload of legislation through?”. Then somebody says, “The only way you can do it, Ministers, is by lots of Henry VIII clauses and lots of powers by secondary legislation”. “Okay, we will do it that way.” The irony of that, as I have said before from these Benches, is that an exercise that was intended to return sovereignty to this Parliament is becoming an exercise in returning power on an unprecedented scale to the Executive. I fear that, unless the Government come up with some new and ingenious proposals for dealing with this flood of legislation short of these broad powers, they will run into trouble time and again.

Of course, we want to get the bad guys, and there is always a temptation, especially if you are the Minister, to go for the Eliot Ness solution—how do we kick down the door and get at the bad guys?—but we cannot ignore a report such as that referred to by the noble and learned Lord, Lord Judge. Go through every page of it. There is reference to the Henry VIII powers, but then:

“We do not consider it appropriate for ministers to have powers … We are concerned about the breadth of the power … We are deeply concerned that the power in clause 16”,


et cetera. It goes on right through the report. This is a really serious warning to Ministers and to Parliament from a very well-respected committee.

Of course, Whitehall does not have a pure record on this. Even in the days when we were simply transferring European law into our own law, there was a well-established practice in Whitehall to do a bit of gold-plating on the way and dig in a few regulations that people had wanted to get anyway. We have to resist this gold-plating. As I say, when someone such as the noble Lord, Lord Pannick, talks about “unjustifiable breadth”, and someone such as the noble and learned Lord, Lord Judge, talks about “a bonanza of regulations” and “extravagant powers”, it is not only the Committee that would be wise to take note; the Minister should as well.

Prisons: Secure Colleges

Debate between Lord Faulks and Lord McNally

Thursday 18th June 2015 Lords Chamber

[Lord Faulks]

Of course I understand the noble Earl’s concern. He has been a consistent supporter of those at this level of challenge to the community. Of course, there are challenges with the limited number of people who are now in custody because, by definition, there will not be a suitable secure children’s home or secure children’s training centre in every part of the United Kingdom. However, it is a principle that will be very much borne in mind.

[Lord McNally (LD)]

My Lords, the House is aware of my interest as chairman of the YJB. Is the Minister aware of how grateful YJB staff are for the widespread support in this House for the work that they do? Is he also aware that, as indicated by the Question asked by the noble Lord, Lord Ramsbotham, there is increasing and welcome co-operation among Whitehall departments —health, education and justice—to make sure that young people who receive education while in custody continue to get education, training or job opportunities once they go through the gate?

[Lord Faulks]

I am very happy to acknowledge the joined-up thinking to which the noble Lord refers. I pay tribute to him as the chair of the Youth Justice Board for all the valuable work that the Youth Justice Board and he do in helping with these great difficulties that confront the Government. I think that the YJB is joining in with a stocktake generally of the youth offending teams. I know that education is a major concern across government, and it is something that the Secretary of State will have very much in mind.

Queen’s Speech

Debate between Lord Faulks and Lord McNally

Monday 1st June 2015 Lords Chamber

[Lord Faulks]

My Lords, this has been a lengthy but remarkable debate. It has contained a little bit of post-election blues, understandably, with various suggestions for improving the electoral system. But for the most part it has contained a number of extremely constructive suggestions from all quarters of the House, dealing with the ambitious electoral programme that is part of the gracious Speech. It is unsurprising that your Lordships’ House has looked carefully at all the different Bills and proposals contained in the Speech and has shown already an appetite for scrutiny of which I am sure that we will see evidence in the months to come.

To some extent, I will not have detailed replies to the various suggestions, because of the fact that this is the first Queen’s Speech in the new Parliament, and quite a few of the Bills have not even been published. But what has been said has been extremely valuable, and I can assure the noble Lord, Lord Foulkes, that I shall take back those observations that are relevant to the Secretary of State for Justice. All the comments contained in this debate will be considered carefully by the Government.

I should also like to congratulate our maiden speakers, coming appropriately, given the theme of the debate, from different parts of the United Kingdom. There was the right reverend Prelate the Bishop of Leeds, a veritable northern powerhouse himself. My noble friend Lord Dunlop unusually made his maiden speech from the Dispatch Box; he will be a valuable ministerial colleague. As many noble Lords know, he has great experience in an area in which he will be scrutinised, or the proposals will be scrutinised, in considerable depth. The noble Lord, Lord Lisvane, has kept us waiting a little longer before making his maiden speech, but it was well worth the wait. We are grateful for all their speeches, and I know that they will greatly inform our debates in future.

The Government are committed to governing for the whole of the United Kingdom. We are one country and we will govern with respect, giving due and proper recognition to our four constituent parts and their Governments. Notwithstanding the penetrating analysis by my noble friend Lord Forsyth of some of the difficulties, particularly in relation to Scotland, I share the positive approach shown by the noble Lord, Lord McFall. We should be looking forward. Devolution enables decisions to be taken in closer proximity to the people whom they affect and gives us the safety and security of being part of the bigger United Kingdom family of nations. We believe in rebalancing the economy to enable wealth to be created more fairly and evenly across the whole country. The devolution packages that have been considered in the course of this debate today will provide the incentives necessary to drive growth in each part of the United Kingdom.

In this Parliament we will fulfil our commitments and implement as fast as possible, as is consistent with good government, the further devolution that all parties agreed for Wales and Scotland, and deliver the Stormont House agreement in Northern Ireland. In parallel, we need to have governance arrangements that are fair for England; in that context, we will bring forward the proposals on English votes for English laws.

I acknowledge that there has been a considerable groundswell of support around the House for what has been for the most part described as a constitutional convention, although various other expressions were used in the course of the debate. The Prime Minister has said that he wants to make our United Kingdom work for all our nations. The Government welcome a discussion on how best to do that, including ideas for constitutional discussion and debate. There were some suggestions before the debate that such a convention should draw up a statute or charter of the union, such as a charter most recently recommended by the Bingham Centre for the Rule of Law, referred to by my noble friend Lord Norton of Louth. In the Government’s Command Paper The Implications of Devolution for England, the Conservative Party said that if a constitutional convention or commission was established, it should be concerned with the effective functioning of the union and could consider the case for a statute of the union, but that such a body should not delay plans for further devolution or the introduction of English votes for English laws. There was, of course, no reference to such a convention in the Conservative Party manifesto, as opposed to the manifestos of Labour and the Liberal Democrats.

I know that English votes for English laws was criticised, notably by my noble friend Lord Lawson, who deplored the idea of there being two classes of Members of Parliament. Attention was drawn to the difficulty of identifying issues where the Barnett formula would be excluded. In answer to the noble Lord, Lord Lennie, I am told that there were a number of Bills in the last Parliament which would have satisfied the criteria and that there is one Bill—the education and adoption Bill—to be introduced shortly which will fulfil those criteria. However, the Government are revising Commons rules to make the law-making process fair and sustainable and changes to Standing Orders will ensure that Bills, or parts of Bills, that do not apply to all parts of the UK will be voted on only by MPs representing affected constituents.

Turning to Northern Ireland and the Stormont House agreement, the Bill gives effect to key elements of the Stormont House agreement that will deal with the legacy of the past. There have been problems in relation to welfare reform, as noble Lords are aware, and it has been said that the UK Government may need to take control of welfare. The Government agree that the situation is serious, which is why the Secretary of State has chaired intensive discussions over recent days. Welfare reform is a key part of the agreement. Without it the Executive’s budget does not add up and that potentially puts devolution at risk, so it is essential for everybody that these issues are resolved, as a number of noble Lords said.

Reference was made to the commitments made in the Stormont House agreement to deal with the legacy of the Troubles. The Government will establish a historical investigations unit, provide for an independent commission on information retrieval and establish an oral history archive. The House will recall the outstanding speech of the noble Lord, Lord Bew, which emphasised the importance of contextualising these investigations so that they do not frustrate what should be achieved by them.

As to Wales, I am glad that the noble Baroness, Lady Randerson, so recently associated with Wales in a ministerial capacity, welcomes the changes delivering what the Government have promised, although she indicated that there were certain areas in which she will push for more.

I turn to the Government’s plans to make the criminal justice system work better for victims—a matter which I will deal with, as my noble friend Lord Dunlop said. Measures to increase the rights of victims of crime will make sure that victims receive the support and information from criminal justice organisations to which they are entitled. This is an area on which all parties’ manifestos contained proposals of a similar nature.

Victims often feel let down and they are the people we owe the greatest duty of care towards. Our plans to enhance victims’ rights go hand in hand with the improvements we are making to help victims of crime navigate the criminal justice system, access the information and support they need and protect vulnerable victims and witnesses in court.

In December 2013, the Government implemented a revised victims’ code to give victims clearer entitlements and a louder voice in the criminal justice system with, for the first time, the right to ask to read their personal statement to the court. However, the experience of victims in the criminal justice system too often falls short of what they have a right to expect. Enshrining victims’ rights in primary legislation will make absolutely clear to criminal justice agencies that they must comply with their duties towards victims.

Before I turn to the substantial issue of human rights, I ought to deal with a number of matters which were raised during the debate. On the question of IPP sentences, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has assumed the mantle of Lord Lloyd, recently retired—and a remarkable mantle it is. The noble and learned Lord drew attention to the power that the Secretary of State has to consider responding to the challenge that IPP prisoners face. Of course, he and the House will be aware that a Secretary of State has to consider the individual and their tariff sentence but at the same time has to be minded about the Parole Board’s assessment of whether any individual may be a risk if released into society. It is something that will be on the Secretary of State’s agenda of things to be considered early in his time in office.

The noble Lord, Lord Dubs, referred to assisted dying and the Private Member’s Bill brought forward by the noble and learned Lord, Lord Falconer of Thoroton, in the previous Session of Parliament. I think that the Bill has found its way into the current ballot but is not terribly high up. I do not want to raise expectations in this regard but the Government are aware of the issue and will consider the question during the course of the next months or years.

I am glad that there is a general welcome from the noble Lord, Lord Ramsbotham, and my noble friend Lord Black for the judicial oversight in relation to bail. I know that the noble Lord, Lord Ramsbotham, will hold the Government very much to account in relation to prisons. I am glad that he welcomed certain signs from the Ministry of Justice that the Secretary of State will place a considerable emphasis on education in prisons. I am sure that he will be anxious to ensure that the reforms that were begun in rehabilitation can be maintained and that prisons become a useful place of rehabilitation.

A great deal has been said about the Human Rights Act on all sides which is misleading. The Government were elected with a mandate to replace the Human Rights Act with a Bill of Rights. Human rights and their protection are the hallmarks of a civilised society and this Government will be as committed as any other Government to upholding fundamental human rights. But the truth is that the cause of human rights has been undermined by various failures of the Human Rights Act. We will now look at how to strike an appropriate balance between rights and responsibilities. There is a clear will in the country to ensure that human rights laws are not abused by those who would do us ill. That does not entail weakening fundamental human rights. It is important to emphasise that human rights were protected long before 1998, and they will continue to be protected under a Bill of Rights.

This will be a significant piece of legislation. It will be of interest to many inside Parliament and beyond. Over the coming months we will draw up proposals to implement this vital reform. We will then take time to consult widely and draft legislation which meets the needs of a modern democratic society.

I am sure that the noble and learned Lord, Lord Falconer of Thoroton, who I think welcomed the fact that there was going to be consultation in relation to the Bill, will accept that when one is making constitutional changes, for that is what they will be, it is important to pause. The changes to the role of Lord Chancellor, which he has very frankly admitted were perhaps a little hasty, are an example. We want to try to get this right.

I want to emphasise as strongly as I can that we are not getting rid of human rights, nor are we going to ignore the convention. The Bill of Rights is likely to reflect all the rights in the convention. We are anxious to maintain what has been a very proud history for many centuries of protecting human rights in this country. Human rights were protected by the common law. Human rights were protected by Parliament and will continue to be protected by Parliament. Let us look at the Modern Slavery Act, so recently passed by Parliament. That was not as a result of the Human Rights Act. Of course there is a prohibition on slavery contained in the convention. But our abolition of slavery long preceded the convention and modern slavery was a nuanced response to a particular situation.

During the debate the noble Lord, Lord Cashman, who is not in his place, seemed to imply that some of the advances in the approach to liberal causes were peculiarly as a result of the Human Rights Act. Same-sex marriage—an important piece of legislation brought in by the coalition Government during the last Parliament—had nothing to do with the Human Rights Act. In fact, there was a real anxiety that Strasbourg would prevent it becoming law, because when an attempt had been made to argue that there should be same-sex marriage, it did not succeed in Strasbourg, but because of a triple lock in the Bill it was generally considered—although not by all—that the legislation would survive.

The problem with the Strasbourg jurisprudence is that it has been of variable quality, and there has been a general sense that human rights—a noble aspiration, as has quite rightly been pointed out in this debate, stemming from what happened in the Second World War, finding its realisation in 1948 in the Universal Declaration of Human Rights and finding its way into the European convention—have been diminished by some of the ways in which it has been used. The Supreme Court has felt itself more or less bound, notwithstanding the provisions of Section 2 of the Human Rights Act. The case of Ullah was a wrong turning by the Supreme Court. In recent years, the Supreme Court has gradually begun to establish what is rather quaintly described as a dialogue with Strasbourg. The noble and learned Lord, Lord Hope of Craighead, rightly said that quite a lot of the Strasbourg jurisprudence is now woven into the common law like Japanese knotweed. That may be so, and I do not suggest for a moment that the jurisprudence from Strasbourg is all not of good quality.

Of course, we should not be insular. We should, in developing our law, look beyond our shores to Strasbourg but not only to Strasbourg. Many judges recently, writing extrajudiciously, have emphasised that the common law itself should be growing organically, as it does, that it has been far too centred on reacting one way or another to the Strasbourg jurisprudence, and that it should, in fact, have been looking elsewhere and not peculiarly at Strasbourg, and should sometimes have simply ignored Strasbourg.

We want a British Bill which will reorient our rights in Britain. The Supreme Court should be supreme. My noble friend Lord Flight referred to the fact that the Abu Qatada case went to our Supreme Court and was then overturned in Strasbourg. The beguiling metaphor used by the Labour Party in 1997 and then in the 1998 Act was that it was bringing rights home. In fact, it was subcontracting the rights to a considerable degree to Strasbourg. We want to bring rights home to this country so that they are protected by our Supreme Court and our Parliament—let us have faith in our Parliament to protect rights—rather than by the inconsistent jurisprudence of Strasbourg.

Nevertheless, we want to consult widely. The noble Baroness, Lady Kennedy, said that there has been a commission. Of course, she was a distinguished member of it; I was a less distinguished member. The majority of the commission concluded that there should be a British Bill of Rights. I welcome the fact that the noble Lord, Lord Marks, is not against the idea of a British Bill of Rights, but understandably—and we agree with this—it is what is in the Bill that is important.

It will not be forgotten that in 2007 Gordon Brown published a Green Paper exploring the possibility of a British Bill of Rights. In 2009 the Labour Government launched a consultation process into a Bill of Rights entitled Rights and Responsibilities: Developing Our Constitutional Framework. I hope that this House, in performing its scrutiny, will honour the fact that there is a mandate to produce this Bill, will scrutinise it carefully, perhaps consider some of the suggestions made by my noble and learned friend Lord Mackay about a degree of democratic override and decide what should be in any such Bill.

I conclude by referring to some rather mysterious comments, which I think mostly emanated from the Liberal Democrat Benches, about the Salisbury convention. They first found their way into a speech by the noble and learned Lord, Lord Wallace of Tankerness, on the first day. They were repeated, I think, in some form by the noble Lord, Lord Thomas of Gresford, and then by the noble Baroness, Lady Randerson. I may have misunderstood it but I thought that what was being said was that there was something unsatisfactory about the electoral system. Of course, the psephology was explained by the noble Lord, Lord Rennard. As a result of that, the Liberal Democrats felt comfortable in ignoring the normal convention—the Salisbury convention.

[Lord McNally]

This is straining at gnats. I was a member of the Cunningham commission that looked at the Salisbury convention and put forward a report adopted by this House. It had one very clear point in it; that is, the House of Lords retains the right to say no. If it did not retain that right, there would not be a need for a Parliament Act. That is the only point that is made. The idea that the Salisbury convention, or what was in the Cunningham convention, allows the Government of the day to get their will, whatever their proposals or whatever is said in a Bill, is not in any convention because the House of Lords retains the right to say no. That is all that has ever been said from these Benches.

[Lord Faulks]

That is precisely what I thought was being said by the Liberal Democrats. It is now on the record and I understand that I have been disabused of the misunderstanding that I must have had about the Salisbury convention. I looked at the Library Note and saw what was said about it. In due course, no doubt that will find its expression in a response to various Bills which satisfy the description of unacceptable in one way or another to the Liberal Democrats.

I hope and expect that all the legislation will be scrutinised with great thoroughness from all quarters of this House. I and the Government welcome that. I hope that it will be possible for the Government to fulfil their ambition that this should be a one-nation Government. There has been some competition for ownership of that phrase, originated, I think, by Disraeli. I thought I was a one-nation Conservative. I then found that Ed Miliband was a one-nation politician and, once again, we have attempted to reclaim that expression. It is in fact a noble aspiration—although “aspiration” is another word about which there is some contest.

In any event, I hope that we can be one nation as a result of the legislation, which this House will, no doubt, help to make better and help this Government achieve its aspiration.

Prisoners: Work

Debate between Lord Faulks and Lord McNally

Monday 8th December 2014 Lords Chamber

[Lord Faulks]

I thank the noble Baroness for her question. It was a surprising judgment. It related to HM Prison Send, which I recently visited with the noble Lord, Lord Howarth, who sits two places away from the noble Baroness. We visited both libraries there and spoke to the librarian. We attended a readers’ group. Frankly, the provision of books was excellent. There were a number of books written by noble Lords or their relatives. There is no ban on books. There is only an attempt to restrict bringing in drugs, via parcels, inside books. If you are a prisoner you can get books.

[Lord McNally (LD)]

My Lords, I declare an interest as chair of the Youth Justice Board for England and Wales. Does the Minister not agree that the most effective work in prison is that which leads to employment outside? Would he like to take this opportunity to commend those employers who have participated in Through the Gate training towards getting a prisoner a job after imprisonment as a means of rehabilitation and urge other employers to join this scheme?

[Lord Faulks]

I am happy to take that opportunity. The Employers Forum for Reducing Reoffending, which includes employers such as Greggs, DHL and Timpson—the forum is chaired by James Timpson—is providing a valuable service. Halfords is also a recent addition. They offer employment, which is usually in prison, which can then provide a bridge into employment in the community. That is a very important contribution and I am happy to acknowledge it.

Alternative Business Structures

Debate between Lord Faulks and Lord McNally

Wednesday 19th June 2013 Lords Chamber

[Lord McNally]

I do not think so. However, a lot of examples have sensibly been raised in the House today, some of them hearsay and some from direct experience, which suggest that what we intended to do in LASPO may not exactly be hitting the target, or that, as a result of organisational devices used by companies, the target has been moved. I can tell the House that we will talk to the regulators and look at some of these examples. If necessary, we will look at the powers that we were given under LASPO to make sure that we do what the House intended, which was to stop the practice of referral fees, particularly in the area of motor insurance.

[Lord Faulks]

My Lords, is the Minister regularly invited, as I am, to commit fraud, by which I mean that telephone calls are made by companies inviting one to sue for accidents that did not occur? Do the Government have any plans to deal with this, and are they aware that this is a frequent problem?

[Lord McNally]

I have not had direct experience of that particular problem, but within my family I have had direct experience of just how casually the law is treated in this area and how that has had a direct impact on the cost of motor insurance. Parliament tried to address part of this problem through the ban on referral fees, but there are many murky practices around this area and the House is right to raise these issues. I will return to the MoJ with the clear message ringing in my ears that we should poke a little further into these murky businesses.

European Convention on Human Rights

Debate between Lord Faulks and Lord McNally

Thursday 7th March 2013 Lords Chamber

[Lord McNally]

My Lords, I think that “dilute” is the wrong word. As the noble and learned Lord, Lord Neuberger, pointed out in his interview the other day, the relationship between our Supreme Court and the Strasbourg court is a healthy one of learning from each other and looking at each other’s jurisprudence as it develops. What we have been doing, and one of the proudest things I have been involved in as a Minister, was the Brighton conference on the workings of the court which looked at how we can build in a subsidiarity to take notice of the importance of national supreme courts while still retaining the strength and the moral authority of the European Convention on Human Rights.

[Lord Faulks]

My Lords, whether human rights are best protected by the Supreme Court, by Parliament or by Strasbourg, all noble Lords are anxious to protect them. However, even human rights have a cost. Public authorities are spending a great deal of money trying to make their policies compliant with the convention—rather like with health and safety—when the Strasbourg jurisprudence is extremely uncertain. The diminishing pot of legal aid is being spent on often unmeritorious cases about human rights, rather than on far more meritorious cases. I was one of the commissioners, and we were not allowed to consider questions of cost. I ask the Minister whether the Government, in the whole human rights debate, could tell us how much human rights is costing.

[Lord McNally]

I am not able to put a cost to human rights any more than to anything else. I see in government—and I suppose that we have a lot of experience of local government in this House—how agents of the state, as the noble Lord said, when making decisions have in the back of their mind that they have to clear certain hurdles about respect for the individual citizen. To me, this is a prize beyond cost.

Transforming Rehabilitation

Debate between Lord Faulks and Lord McNally

Wednesday 9th January 2013 Lords Chamber

[Lord McNally]

I thank the noble Lord for those questions. I will certainly have a look at what he refers to as the “through the gate” experience and if the Minister responsible is now in this House, I might ask him or her about their experience. Nevertheless, there is overwhelming evidence that through-the-gate help and preparation before prison, along with being met at the gate and helped afterwards, has an impact.

The probation service will continue to have oversight across the piece. Part of the consultation will be about how light-touch that will be in terms of the day-to-day management of offenders, but we are conscious of the evidence that risk can change during the process of supervision and that there may well be a need to move certain individuals from the areas being managed by the private and voluntary sectors back into the public sector. However, that will be built into the oversight provisions that are to be part of the outcome of these consultations.

On the question of a debate, it is a matter for the usual channels, but if the Government prove difficult to persuade, I am sure that my noble friend Lord Dholakia will be able to persuade the Liberal Democrats to give one of their debate days to such a discussion. One way or another, we will have a debate in this House on this matter.

[Lord Faulks]

My Lords—

--- Later in debate ---

[Lord Faulks]

I welcome this Statement, particularly its focus on those with sentences of less than 12 months and its identification of that period of vulnerability as young offenders leave prison. One of the particular areas of vulnerability is those offenders who have a previous history of drug addiction who are then prone to taking large doses of drugs which can result in death. I therefore welcome the role of a mentor, although I recognise what the noble Lord, Lord Ramsbotham, has said about the perception of custody plus because I was sitting as a recorder at the time. However, the role of a mentor seems to me to be potentially very important. Can the Minister help the House by identifying who exactly is going to perform this mentoring role and what its scope might be so as to assist in avoiding those traps that I have attempted to identify?

[Lord McNally]

My Lords, as part of the consultation, we will be looking at the structure of mentoring. However, in the specific terms that my noble friend has referred to—in relation to those who leave prison with problems still associated with drug addiction—one thing we are trying to do, with the co-operation of the health service, is to make sure that people who are on programmes in prison continue to receive those programmes when they leave. One of the barmier aspects of the current system is that people who have been on treatment leave prison and, surprise, surprise, their addiction returns. Part of the programme of release will be to continue programmes like that.

As for mentoring, we will just have to wait to see the response, what kind of organisations come forward with suggestions, and where we build into any mentoring programme the proper training that will enable mentors to be effective in their work.

Defamation Bill

Debate between Lord Faulks and Lord McNally

Monday 17th December 2012 Grand Committee

[Lord McNally]

Again, because I am not a lawyer, I will take that away and take advice on it. As regards wealthy individuals who want to test their cases before British judges, although we have been talking about judicial case management, we have a judiciary which is world renowned for its integrity and impartiality and we should not forget that. However, I will take that matter away.

[Lord Faulks]

Before the Minister finally sits down, I hope that I may ask him one further thing. This is something which I think arose out of Second Reading, and is consistent with what the noble Lord, Lord Triesman, said about trying to minimise expenditure: that is, the possibility of having these defamation actions heard in the county court as opposed to the High Court, which would automatically reduce the cost.

[Lord McNally]

Again, I will take that matter back. The noble Lord may be interested to know that my right honourable friend the Lord Chancellor who, like me, is not a lawyer, is much attracted by that idea. It is certainly worthy of consideration. Unfortunately, the noble Lord, Lord Hunt, is no longer in his place but if he and his colleagues come forward with some robust self-regulation for the media, mediation may well find its proper place in that area as well. A balance needs to be struck between the extent to which you can force mediation and the extent to which it can be readily available. I will certainly look at the point made by the noble Lord, Lord Triesman.

Justice: Indeterminate Sentences

Debate between Lord Faulks and Lord McNally

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.

[Lord Faulks]

My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?

[Lord McNally]

I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord McNally

Monday 23rd April 2012 Lords Chamber

[Lord McNally]

My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,

“would alter the financial arrangements made by the Commons”,

and goes on to state that,

“the Commons do not offer any further Reason”.

As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.

Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.

One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.

The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—

[Lord Faulks]

I am very grateful to my noble friend for giving way. I wonder whether he can help the House on one point. Originally, before the welcome concession by the Government concerning babies damaged at or about the time of birth, the response was that exceptional funding might be available to meet those claims. Now that those claims are to be within the scope of legal aid, does it follow that more exceptional funding might be available to deal with the hard cases that may arise with children who are outside the scope of the eight-week period?

[Lord McNally]

I do not think that exceptional funding has ever been a specific amount of money and that therefore the amendment releases more of the exceptional funding pot to others. The exceptional funding is there to meet cases that fulfil the requirements for exceptional funding. I will not follow my noble friend because he leads me down a dangerous road. The exceptional funding is and will be there on the merits of the case. That is why we have confidence that the combination of the amendments that we have made, the CFAs, which, as was pointed out, some 82 per cent are already using, and a robust exceptional funding scheme will meet the needs in the cases that are covered by the amendment that we are opposing. Again, I ask the noble Lord to withdraw his amendment and to support the Commons.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord McNally

Wednesday 7th March 2012 Lords Chamber

[Lord Faulks]

My Lords, perhaps I might intervene briefly on this matter. I have experienced quite a number of cases involving educational law and I notice that this amendment is very widely drawn, potentially embracing all sorts of disputes.

It has to be said that the support of legal aid for educational law disputes has not been the finest hour of the LSC. In particular, I can speak from experience of three cases in the Supreme Court and a whole rash of cases alleging educational negligence, almost none of which were successful, which cost the taxpayer an enormous amount of money. Although well intentioned on the part of the claimants, these cases turned out to be expensive, unsuccessful and, quite frankly, misconceived.

I am very concerned about the width of this amendment, notwithstanding the fact that there are some areas, which I think are covered by the government amendment, where it is plainly appropriate that there should be support.

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

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This requires them to set out in writing why they disagree with the admissions decision and why they think that the admissions arrangements have not been followed correctly. These are not usually legal arguments. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors setting out their reasons for challenging the exclusion. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the independent review panel. The Department for Education will fund the children’s legal centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination and legal aid is being retained for advice and assistance in such cases.

Advice is also available on admission and exclusion matters from the Advisory Centre for Education and the Children’s Legal Centre. Education negligence claims have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid on only those money claims which concern a significant breach of human rights, an abuse of a position of power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill’s scope.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord McNally

Monday 16th January 2012 Lords Chamber

[Lord McNally]

I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.

There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.

[Lord Faulks]

My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this amendment, is not so much the detail, which we are going to develop in due course in argument, but more the question of principle, which I would suggest, and others all round the Committee have suggested, is at the moment embodied in this clause in a most unsatisfactory way.

I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.

Supreme Court: President

Debate between Lord Faulks and Lord McNally

Wednesday 16th November 2011 Lords Chamber

[Lord McNally]

My Lords, I could not agree more with my noble friend. The difficulty is that sometimes the idea of choice on merit slips into “chaps like us”, and that is what must be avoided.

[Lord Faulks]

My Lords, do the Government have any view on the so-called tie-break principle, whereby if there are two candidates of entirely equal merit there will be a favouring of either female applicants or members of the ethnic minorities?

Bill of Rights

Debate between Lord Faulks and Lord McNally

Monday 24th January 2011 Lords Chamber

[Lord Faulks]

The Minister said on another occasion—I think at the Liberal Democrat Party conference—that he was anxious that the Act should be “better understood and appreciated”. Does he envisage, along with other steps that might be taken, giving a gentle reminder to courts and tribunals of the provisions of Section 2, which requires them to “consider” Strasbourg jurisprudence, as opposed to slavishly following it even if the decision is contrary to common sense?

[Lord McNally]

Most certainly, my Lords. One thing that I have been looking at is whether it is possible to give some guidance in the exercise we are undertaking which will point our courts to such a sensible review of human rights cases. Nothing does more damage to human rights than court judgments that call on human rights, not always accurately, as the justification for action which the general public think is absurd.