Courts: Resourcing and Staffing

Lord Lester of Herne Hill Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I congratulate the noble and learned Lord, Lord Woolf, on organising and leading this debate, and the Woolf judicial quintet, who we are privileged to hear and enjoy. I also congratulate the new Lord Chancellor and Justice Secretary on her appointment and wish her a successful period in office. I hope that she will not seek to replace the Human Rights Act with a weaker British Bill of Rights. That would be a mistake. It would threaten the unity of the realm, which the new Prime Minister rightly cherishes. I hope also that the noble Lord, Lord Faulks, will continue to lie upon his bed of nails and advise the new Lord Chancellor as he advised the previous Lord Chancellor, Michael Gove, as to what should be done in that area. The new Justice Secretary faces formidable challenges, many of which are highlighted in the Motion and speech of the noble and learned Lord, Lord Woolf. We must all wish her success: justice, justice, justice may she pursue.

The present British judges are the best in the world, but the new Justice Secretary will face a serious crisis affecting the rule of law, as explained so powerfully by the noble and learned Lord, Lord Woolf. Next year around half a dozen vacancies will arise in the Supreme Court of the United Kingdom when the present incumbents reach retiring age. It is essential to fill those vacancies with judges of the right calibre and experience from all parts of the country. The previous Justice Secretary proposed the employment of a new chair of the Judicial Appointments Commission, the noble Lord, Lord Kakkar. I hope that the new Prime Minister will agree to his appointment. He will have the task of encouraging well-qualified candidates to apply to be High Court judges, and as the House has already heard, that will depend in part on the support they will have on the Bench. It is essential that there are sufficient resources to enable courts and tribunals to function effectively and to make life on the Bench attractive. When I served on the Constitution Committee and the Lord Chief Justice gave evidence, in my questioning I explained my own failure to persuade senior and experienced practitioners, women and men, to apply to be High Court judges. I tried, I tried again, and I completely failed.

The chairman of the Bar Council, Chantal-Aimée Doerries QC, has explained in her letter the Bar’s concerns about the current level of investment in the courts and the administration of justice. She accepted that judicial salaries have never been able to match the earnings of the most successful practitioners, but she went on to point out the security afforded by judicial pensions as an important incentive to attract the best-quality candidates, without whom the risk of decline in the standing and quality of the judiciary is very real, as other noble Lords have explained. In the evidence of the Lord Chief Justice to the Constitution Committee in April this year, he pointed out that a new High Court judge will have a pension materially less than that of a district judge. That will lead to a decline in the standing and quality of our judiciary, with a knock-on effect on the quality of our courts and the rule of law.

The morale of both the Bench and staff in the courts service is low. The first Judicial Attitude Survey, conducted in September 2014, had an 89% response rate. Some 65% of all judges reported that morale among court staff is poor, while 40% reported that the level of administrative support is low. The Bar Council reports that courthouses are in a state of disrepair with poor facilities in courtrooms up and down the country. The failure to invest means that many courts have not been modernised and lack modern means of communication to provide for better access to justice.

Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target for Treasury raids. Yet access to justice is as important as access to healthcare. The swingeing cuts to legal aid and the imposition of court and tribunal fees have contributed to poor working conditions and threaten the rule of law. In the civil system the number of litigants in person has rocketed, with a 30% increase in family court cases where neither party has legal representation, and in 80% of cases at least one party does not have legal representation. Litigants in person result in emotionally charged courtrooms and delayed cases, which can have a profound effect on the effectiveness of court operations and hinder access to justice.

The situation is no better in the criminal courts. In May, the Public Accounts Committee warned that the Government,

“has exhausted the scope to cut costs without pushing the system beyond breaking point”.

In some areas, even if the court makes full use of its allowance of sitting days, there are not enough judges to hear all the cases, and the Ministry of Justice has been too slow to recognise where the system is under stress and to take action to deal with it.

The investment of £738 million in the modernisation and digitising process is essential and welcome. The online dispute resolution model has great potential and wide support, but clarification is urgently needed as to whether there will be funding available for legal representation or costs recovery. Without such funding, a two-tier justice system which, like the Ritz Hotel, is open only to the rich, violates the rule of law.

The Lord Chancellor is under a statutory duty to ensure that there is an efficient and effective system to support the carrying-on of the business of the courts. The new Lord Chancellor will have to persuade the new Chancellor of the Exchequer to enable her to perform that duty. By that, she and the Government will be judged.

Armed Services: War Crimes

Lord Lester of Herne Hill Excerpts

Tuesday 1st March 2016 Lords Chamber

[Lord Faulks]

The noble and gallant Lord asks an entirely pertinent question. The Prime Minister has asked the Defence and Justice Secretaries to prepare a legislative package to redress the balance. That is clearly one of the matters under consideration, as is derogation from the Human Rights Act. There are a number of other matters which I would rather not go into detail about now, but I can assure the noble and gallant Lord that all these matters will be carefully considered.

[Lord Lester of Herne Hill (LD)]

Is not the Minister in some difficulty in his replies? So long as we remain bound by the European Convention on Human Rights and subject to the jurisdiction of the Strasbourg court, if the Minister and his colleagues introduce a new-fangled Bill of Rights that in any way is incompatible with the convention, it would be futile because the Strasbourg court—if not our own courts—will rule on that incompatibility. Is it not better, therefore, to answer this Question by indicating that for the sake of our soldiers, sailors and airmen, as well as others, we need the proper law to be both a human rights law and international humanitarian law?

[Lord Faulks]

I am sure that the noble Lord will not have forgotten the margin of appreciation. Provided our British Bill of Rights respects the European convention but tailors it to suit the particular challenges that the military faces, it is likely that Strasbourg will respect our interpretation. Of course, we will continue to protect human rights under any regime that exists, and also to respect our international humanitarian law obligations.

Legal Aid

Lord Lester of Herne Hill Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I congratulate the noble Lord, Lord Howarth, on his powerful speech, with which I agree. I am very sorry that the noble Lord, Lord Pannick, cannot be with us today, owing to a family bereavement, but his powerful essay in the Times today says everything with which I also agree.

Today is international Human Rights Day. One fundamental human right is effective access to justice, protected by the Human Rights Act and the common law. It is a state’s duty to provide a system of legal aid that enables everyone, including the poor and not so rich, to have effective access to courts and tribunals. Fifty years ago when I began to practise law, our legal aid system was the best in the world. It was the Attlee Government’s great achievement to have brought in the Legal Aid and Advice Act at a time of severe post-war austerity. Its vision was that no one should be unable to defend a legal right or bring a just and reasonable claim because of lack of means.

I am proud to be honorary president of the Liberal Democrat Lawyers Association. We have always toasted the health of the 1949 Act at our annual dinner. Now there is little left to toast. Legal aid has been treated as the Cinderella of the welfare state—an easy target for the Treasury’s axe. Successive Governments have cut legal aid to the bone. In 1949, eight in 10 people had access to legal aid, based on income and assets. By 1986, six in 10 were eligible. By 2008, just shy of three in 10 satisfied the means test. In 2009, an independent review concluded that it would be wrong to tighten the screw any further. However, the coalition Government made swingeing cuts without adequate research into their probable impact.

The yearly budget for civil legal aid before the cuts was £2 billion in total—equivalent to running the NHS for a fortnight. It was reduced by £300 million, and plans were announced to cut criminal legal aid by £220 million every year until 2018. The civil legal aid reforms swept whole areas of law out of the safety net—family, debt, housing, employment, immigration, medical negligence, education and welfare benefits—with narrow exceptions. This House voted against the legislation 14 times before it squeaked through.

The Government anticipated that reforms would encourage potential litigants to engage in alternative dispute resolution. Those calculations were misjudged. In January 2015, the Commons Public Accounts Committee found that mediation for family law matters had fallen by 38% rather than increasing by 74% as the ministry expected. As Lord Scarman discovered when he spent three days trying to solve a social security problem for his cleaning lady, welfare law is as complex as tax law, yet as more and more legal advice centres are starved of funding, litigants must represent themselves.

The cuts come at a time of stringent reductions in other public services, when the need for access to justice could not be greater. Whenever people cannot have access to legal assistance, one sees spiralling debt, mental health problems, homelessness, criminality and family breakdown—all with knock-on costs to other public services. In compelling evidence to the Commons Justice Committee, Islington Law Centre reported that two people had collapsed in its offices because of a lack of food. They had received benefits sanctions and had not contested them. In one case, a man had not eaten for six days; in another, a woman was unable to feed herself and her three young children. The exceptional funding scheme was intended to be a safety net, but the application process remains so complicated that people cannot use it.

The previous Lord Chancellor imposed exorbitant taxes on justice. For the first time, court fees do not reflect the administrative costs of the court: instead, the Treasury profits from people seeking to enforce their legal rights. The justice system is too expensive for traders, small businesses and the victims of personal injuries. I warmly welcome last week’s decision by the new Lord Chancellor to scrap the criminal courts charge and announce a review into court-ordered financial impositions for offenders. I hope that he will also reverse the increase in court and tribunal fees in civil cases.

In December 2014, the previous Government promised a post-implementation review,

“on a period of three to five years”—[Official Report, 4/12/14; col. 1402.]

after the implementation of LASPO. Waiting until 2018 for a comprehensive review is too long. Post-legislative scrutiny should begin in April 2016. I hope the Minister agrees. It is vital that these assaults on our two-nation justice system are reversed. What use is the rhetoric of human rights if the system, like the Ritz hotel, is open only to the rich?

--- Later in debate ---

[Lord Faulks]

We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.

[Lord Lester of Herne Hill]

In deference to the noble and learned Lord, Lord Woolf, will the Government reinstate the word “writ” instead of claim form?

[Lord Faulks]

I share the noble Lord’s dislike of that expression but I cannot give any commitment at the Dispatch Box on that matter.

Mediation is not, I entirely accept, a panacea but the Government have done a great deal of work on mediation. It is clear that the courts need to be concerned with most decisions of great importance but we need to encourage mediation. We have taken a number of steps to promote family mediation and its benefits. From April last year the Children and Families Act 2014 made it a legal requirement that anyone considering applying to court for an order about their children or finances must first attend a mediation, information and assessment meeting, unless exemptions such as domestic abuse apply. On domestic abuse, we have changed twice the evidence requirement, to make it easier for legal aid to be obtained for domestic abuse.

From November last year we fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario both participants will be funded for MIAM and the first session of mediation. So, I am pleased to share with the House that the number of people starting legally aided family mediation has increased over the last year and is at its highest volume since April to June 2013.

Legal aid remains a vital part of the system. It was brought in by the Attlee Government post-war and remained part of a significant improvement to social justice. This Government do not want to abandon legal aid. We are, of course, suffering under financial constraints but that does not mean that we should not be directing our attention to ensure that access to justice can be obtained, partly by legal aid and partly by improving our justice system in the various ways touched on in the course of this debate.

The Ministry of Justice remains open, as I hope has been indicated by the Lord Chancellor’s response to one or two areas, which may be characterised as U-turns or, more properly, further consideration. I do not consider the capacity to change course to be a weakness and I hope that noble Lords will agree about that. The lessons that we learn from LASPO will, I hope, inform policy-making. We remain under significant financial constraints. However, there is no reason to abandon our commitment to access to justice. I am grateful to all noble Lords, all of whom I know share the Government’s commitment, for bringing these matters to the attention of the Government and to the House.

British Bill of Rights

Lord Lester of Herne Hill Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Faulks]

Clearly, I would not wish to comment on the circumstances of the former Attorney-General’s departure from government. I accept that it is important that we comply with our treaty obligations and we have no intention of departing from them. We have a proud record of complying with human rights obligations and protecting human rights throughout the world. It is no part of the Government’s intention that we in any way weaken our resolve to protect human rights here or abroad.

[Lord Lester of Herne Hill (LD)]

My Lords, the Minister has been more equivocal in his replies to this House than was Michael Gove in the evidence he gave to the Constitution Committee recently. Will the Minister confirm that the Government have no intention of following the example of the Russian Federation in its recent legislation?

[Lord Faulks]

I have, of course, read what the Secretary of State said to the Constitution Committee, of which the noble Lord is a distinguished member. I do not think anything I have said is divergent from the evidence he gave and we certainly have no intention of legislating specifically as the Russian Duma did yesterday.

European Union Referendum Bill

Lord Lester of Herne Hill Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, I should like to return briefly to two points from among those I made in Committee. First, if our fellow countrymen and women who have lived overseas for more than 15 years are deprived of the vote in this all-important referendum, it will be because of a preventable accident of timing. As we have heard, the Conservative Party is committed to enfranchising them, but the promised Bill to do so has not appeared. The right thing to do, and this is a Government who pride themselves on doing the right thing, is to make provision for them to take part in the referendum through this Bill.

Secondly, I say again, as I did in Committee, that we should put ourselves in the shoes of our fellow countrymen and women who have been living in other EU countries for more than 15 years. How would we like it if we were deprived of the vote in a momentous referendum which will touch our present livelihoods and future prospects so intimately and directly, when we knew that at the next parliamentary election a vote would be ours? I take the view that the Bill should be returned to the other place incorporating this amendment. The issue was discussed hurriedly and incompletely during the earlier debates on the Bill there. Let the elected Chamber be asked to make a carefully considered decision on this issue. If we do that, we will have discharged our proper constitutional duty in relation to this part of the Bill.

[Lord Lester of Herne Hill (LD)]

My Lords, I regret that I was not able to speak at the Committee stage, but I want to make one brief point. It is extremely important for us, through the Government and Parliament, to recognise the service given by our fellow citizens when they serve in the European institutions. I have made the point in the past so far as judges are concerned. It is vital to get good British judges to serve in Europe. But exactly the same applies elsewhere in the European public service.

The example that comes to my mind is that of an admirable civil servant, now retired, called Simon Palmer. He has lived in France for more than 15 years. He lives there because during the whole of that time he served the Council of Europe as a member of the European civil service. He takes his holidays in England and he is thoroughly British, but he has brought up his family in Europe. I see no good reason why he should suffer the penalty of being disqualified from the referendum simply because he has lived there for the wrong side of 15 years. His connection with this country is no weaker, and it is very important that through this debate and what comes of it, we should recognise the vital public service given by people like him by giving them the ability to vote in this crucial referendum.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I too, support this amendment, to which I have added my name. There are many people living all over the European Union who, as the noble Lord has said, have done fine service for our country and who are still receiving pensions from this country and paying tax in this country, and they deserve a voice. This is one of the most important votes that will have happened in their lifetime, and they certainly deserve a voice, as I say.

I respect the coherent position of my own party, although I disagree with it, but I do not understand the incoherent position of the party opposite, as was said by the noble Lord, Lord Hannay, and other noble Lords. The Conservative Party has, I believe quite rightly, said that it will extend the franchise. This is the most important vote for many of those people to whom the franchise will be extended, so why cannot it be extended now? Why cannot that legislation be brought forward before we have the referendum? That is a simple question, and I believe it is the proper one to ask.

--- Later in debate ---

[Lord Faulks]

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

[Lord Lester of Herne Hill]

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

[Lord Faulks]

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

Human Rights: UK Application

Lord Lester of Herne Hill Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

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

[Lord Lester of Herne Hill (LD)]

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

[Lord Faulks]

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

European Union Referendum Bill

Lord Lester of Herne Hill Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

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

[Lord Lester of Herne Hill (LD)]

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

[Lord Faulks]

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

Office of Lord Chancellor (Constitution Committee Report)

Lord Lester of Herne Hill Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, like others who will speak after me, I have the privilege of being a member of the Constitution Committee that produced this report. The House of Lords frequently hears a great deal of flattery across the House and mutual admiration, but what I am about to say is not flattery: I have never served on any committee, of this House or otherwise, under a better chair than the noble Lord, Lord Lang. I am very grateful to him for the service that he gives that committee. He summarised the report so fully that it is unnecessary for me to repeat what he has said.

The report was published on 11 December. The then Lord Chancellor, Chris Grayling, gave the Government’s response in a letter of 26 February 2015. As the noble Lord, Lord Beecham, has just observed, he rejected most of the committee’s key recommendations. This debate gives the House the opportunity to review that response. I hope that the luckless Minister, who has to do many difficult things, will be able in his reply to give the new Government’s response to the committee’s key conclusions and recommendations, which are summarised in chapter 5.

If I may, I will ask a few questions that have not necessarily been covered by the speech of the noble Lord, Lord Beecham. Do the Government agree that, as paragraph 32 states, the Lord Chancellor must ensure that the judiciary must be,

“free to act without undue pressure from the executive, that the executive respects the outcome of court judgments, and that the legal system is adequately resourced”?

Chris Grayling’s letter did not refer to that at all.

The committee found it regrettable, in paragraph 49, that,

“the Ministerial Code and the Cabinet Manual do not address the Lord Chancellor’s role in respect of the rule of law, beyond judicial independence. The Cabinet Manual refers to the Law Officers’ role in ‘helping ministers to act lawfully and in accordance with the rule of law’, … but makes no mention of the Lord Chancellor’s duty in this respect. The only mention of the Lord Chancellor in the Ministerial Code relates to the appointment of judges and legal officers to Royal Commissions and inquiries”.

We referred to Jack Straw’s evidence that the two documents,

“‘have not caught up with’ the changed role of the Lord Chancellor”.

Chris Grayling’s letter did not refer to this. Why do the Government disagree with the committee’s recommendation in paragraph 50 that there should be a specific requirement on the Lord Chancellor to respect and uphold the rule of law, and that the Ministerial Code, Cabinet Manual and oath of office should be amended accordingly?

The committee recommended, in paragraph 101, that the Lord Chancellor is best placed to have responsibility for oversight of the constitution as a whole, in light of his responsibility for the rule of law. As your Lordships have heard, Chris Grayling responded that the then Deputy Prime Minister, Nick Clegg, had that responsibility. The Chancellor of the Duchy of Lancaster, Oliver Letwin, is now responsible for advising the Prime Minister on how to implement government policy co-ordinating constitutional reform. Why has Mr Letwin, rather than the Lord Chancellor, been given this responsibility?

Mr Grayling rejected the committee’s recommendation, in paragraph 113, that the Government should,

“either ensure that the Permanent Secretary supporting the Lord Chancellor at the Ministry of Justice is legally qualified, or appoint the top legal adviser in that department at permanent secretary level”.

Chris Grayling disagreed because he said that the Lord Chancellor and the Permanent Secretary have access to high-quality legal services. We received evidence, referred to in paragraph 68, from former Lord Chief Justices and the noble and learned Lords, Lord Judge and Lord Woolf, both of whom I am delighted are in their place for this debate, about the level and expertise of legal support for the Lord Chancellor inside the Ministry of Justice.

Mr Grayling’s response failed to deal with the concern, expressed by the noble and learned Lord, Lord Woolf, to us that,

“whereas a [pre-reform] Lord Chancellor could position himself outside the normal ministerial role in relation to political issues that are deeply contested, it is much more difficult for someone who is both Lord Chancellor and Minister of Justice”.

Mr Grayling was the first Lord Chancellor in modern times not to have a legal qualification. He introduced deep cuts to the provision of legal aid and made inroads on judicial review. I much regret that I had to support a coalition Government in those measures. Mr Gove is in charge of government policy now to tear up the Human Rights Act and decouple our system from the European Convention on Human Rights. They are not constrained by any other Cabinet Minister or by Dominic Grieve, who was sacked as Attorney-General for disagreeing with government policy on human rights. The challenges to access to justice and the rule of law are clear and dangerous, and will have to be dealt with politically.

It would, I think, be possible to be a fine Lord Chancellor without being a lawyer. My old boss, Roy Jenkins, would have been, because the rule of law was part of his DNA—indeed, he would have been a better Lord Chancellor than some who have been lawyers. Although the noble Lord, Lord Pannick, has rightly welcomed the recent speech made by Mr Gove, Mr Grayling does not have the rule of law in his DNA nor, I regret to say, do the rest of the Cabinet. It will be for the judiciary and Parliament to call them to account.

--- Later in debate ---

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

My Lords, I thank my noble friend Lord Lang for securing this debate and providing the opportunity for the House to consider and discuss the Constitution Committee’s report on the office of the Lord Chancellor. I fear that I may disappoint noble Lords, who have all provided great-quality speeches in the debate, in the sense that my response will contain rather few surprises.

However, what I can say, consistent with what my noble friend would say, is that the new Lord Chancellor is very much in listening mode. There is no question of complacency on the part of the Lord Chancellor or in the Ministry of Justice, as the noble and learned Lord, Lord Phillips, suggested. I know that the Lord Chancellor will read the debate with considerable interest. I cannot guarantee what his response will be but I know that great heed will be taken of what has been said. Indeed, the committee’s report will be considered more carefully than it already has been. It is a comprehensive report and the Government recognise that the committee has assimilated a great deal of material collected from written submissions and oral evidence from a wide range of experts and practitioners, including Lord Chief Justices and Lord Chancellors.

The Government welcome the committee’s report, particularly its reaffirmation of the important constitutional role of the Lord Chancellor. However, we recognise that the committee has expressed disappointment at the brevity of the previous Government’s response to this report, and with two aspects of it in particular. I will endeavour to deal with those points. I fear that I will not be able to answer all the different points raised in the debate, including the EVEL debate, mentioned by the noble and learned Lord, Lord Falconer, or prisoner voting, which deserves a debate of its own. Of course, the comments are very much borne in mind by the Government.

First, I shall reflect on the current Lord Chancellor’s position on the rule of law. Noble Lords will, I am sure, be aware of his recent speech at the Legatum Institute, where he began to outline what he sees as a “one-nation justice policy”. He said:

“The rule of law is the most precious asset of any civilised society. It is the rule of law which protects the weak from the assault of the strong; which safeguards the private property on which all prosperity depends; which makes sure that when those who hold power abuse it, they can be checked; which protects family life and personal relations from coercion and aggression; which underpins the free speech on which all progress—scientific and cultural—depends; and which guarantees the essential liberty that allows us all as individuals to flourish”.

Noble Lords may think that those statements embody the core purpose of the justice system and indicate that he does not regard the law, as the noble and learned Lord, Lord Cullen, said, as “a mere appendage”. They bear careful consideration. No definition of the rule of law is likely to attract complete consensus, although Lord Bingham’s in The Rule of Law has quite rightly attracted widespread approval. Many countries boast of their adherence to the rule of law. In Russia there is a book that extols its virtues. China, which I recently visited, speaks consistently about its adherence to the rule of law.

The committee’s report comes at a time of considerable interest in the office of the Lord Chancellor. Among others, a recent publication by University College, London, on the politics of judicial independence concerned itself with the issue. That study reached a number of conclusions, including the fact that the judiciary and judicial independence emerged stronger from the 2005 changes with the inclusion of tribunals in the courts system, a more independent and visible Supreme Court, and greater autonomy of the Lord Chief Justice as the head of a more professional judiciary. The report recognised the change in the role of the Lord Chancellor and saw it as providing a political guardian of judicial independence with sufficient channels of communication to allow a new relationship to evolve between judges and politicians.

As to the role of the Executive, it is worth noting that the Lord Chancellor has specific duties under the Constitutional Reform Act 2005 to respect the rule of law and to have regard to the need to defend judicial independence. The noble and learned Lord, Lord Falconer, told the House about the nature of the obligations, which were of course considered by Parliament not all that long ago. It is worth mentioning that all Ministers of the Crown with responsibility for matters relating to the judiciary or the administration of justice have a legal obligation to uphold the continued independence of the judiciary.

Upholding the rule of law and defending judicial independence is a shared responsibility. The rule of law plays an integral part in the policy and the operations that we develop, particularly through the administration of the courts and tribunals system. The Government believe in, and will fervently support, the independence of the judiciary. That independence has two facets: the institutional independence of the judiciary as a branch of the state; and the independence of an individual judge, who has the discretion to make the decisions they do in court according to law. We defend their right to take those decisions.

I know that the committee expressed disappointment that the Government do not agree with its suggestion that the Lord Chancellor is required, above all other Ministers, to ensure that the rule of law is upheld within Cabinet and across government, or that the Ministerial Code, Cabinet Manual and oath of office should be amended to reflect that requirement. The Ministerial Code and the Cabinet Manual already set out the way the Government comply with the rule of law. As I have already said, all Ministers have a duty to respect the rule of law, and of course the Prime Minister ultimately has responsibility for overseeing the constitution.

The Cabinet Manual, in particular, notes the role of the law officers in,

“helping ministers to act lawfully and in accordance with the rule of law”.

The Government agree with the committee on the important role played by the law officers in upholding the rule of law. This view has been shared by successive Governments. The law officers play this role in particular by advising on some of the most significant legal issues being dealt with by government through their significant public interest functions, such as bringing contempt proceedings, and through participating in the work of the Government as Ministers of the Crown. This includes the Attorney-General participating in Cabinet meetings. I know that the noble Lord, Lord Lang, and others concluded that the Attorney-General should as a right attend all Cabinet meetings. I understand that the expectation is that he will continue to attend all Cabinet meetings but, ultimately, his attendance is a matter for the Prime Minister. Despite the comments of the noble Lord, Lord Beecham, the Government consider that the law officers are adequately resourced to fulfil their functions as they relate to the rule of law. An important function of those officers is keeping all ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney-General is an important one; they meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.

I know that the committee also expressed disappointment that the Government do not agree with its assertion that the Permanent Secretary at the Ministry of Justice needs to be legally qualified, or that the department’s top legal adviser needs to be appointed at Permanent Secretary level. It is a matter of some serendipity that the recent appointment of Richard Heaton as the Permanent Secretary has arrived in time for this debate. He is also First Parliamentary Counsel and undoubtedly has weighty legal experience. However, both the Lord Chancellor and Permanent Secretary, whether legally qualified or not, have access to high-quality legal services provided by the Government Legal Department, including direct access to the Treasury Solicitor and one of his deputies at director-general level, should it be needed. Advice can be sought from Treasury counsel, external counsel and the law officers, where needed. This provides the right level of legal support. Importantly, in addition to this, the Lord Chancellor is supported by, and has access to, a wealth of experience and expertise from civil servants, many of whom have long experience of courts and the administration of justice. I can give some evidence of this in response to the—

[Lord Lester of Herne Hill]

It must be my own problem, for which I apologise, but is the Minister speaking for the old Government or the new Government in what he has just said?

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

Human Rights and Civil Liberties

Lord Lester of Herne Hill Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a great privilege to follow three such powerful speeches. I cannot match the eloquence of the speech just now from the noble Lord, Lord Cashman, but I hope that it will be read by members of his party and indeed of all parties and none after this debate. It is a pleasure to speak in the presence of the noble and learned Lord, Lord Irvine of Lairg, since it is he, more than any other Minister in the Labour Government, who takes credit for the Human Rights Act. I am very glad that he is here.

No law can save our human rights unless there is a culture of liberty that is deep-rooted and popular. Law is not a panacea. It has to enjoy public confidence and to be respected by Ministers in what they do as well as what they say. The Human Rights Act requires Ministers to state whether they believe a government Bill to be compatible with rights protected by the convention. It requires all three branches of government—Parliament and the Executive as well as the judiciary—to act compatibly with the convention rights. It preserves parliamentary sovereignty. Our courts may declare legislation to be incompatible with the convention, but may not strike it down. The Human Rights Act leaves it to the Executive and Parliament to choose whether and how to comply with a declaration of incompatibility, or to leave the claimant to seek redress in Strasbourg.

The Act requires our courts to have regard to Strasbourg judgments, but not to be bound by them. Our Supreme Court has been robust in recent years in subjecting Strasbourg reasoning to critical scrutiny, and explaining where it begs to differ. A valuable dialogue now takes place, and the judgments of our courts are influential in Strasbourg.

Today the main threats come from a Government of zealots. If they succeed in doing what they threaten to do, their legacy will be to have weakened the protection of human rights and undermined the culture of liberty. The newly elected Government, unrestrained by their former coalition partner, threaten to tear up the Human Rights Act and replace it with a weaker British Bill of Rights that may not be anchored in the convention. They also threaten to ignore judgments of the Strasbourg court with which they disagree, undermining the rule of law here and across Europe.

The new Lord Chancellor and Justice Secretary, Michael Gove, is in charge of human rights policy. His predecessor, Chris Grayling, and the Home Secretary, Theresa May, are hostile to the Human Rights Act and to the Strasbourg court. So is Michael Gove’s junior Minister Dominic Raab, as he showed in replying to the Westminster Hall debate on Tuesday. On 23 June, Dominic Raab told the Commons that the Government’s,

“plans do not involve us leaving the convention”,

but he added that,

“our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table”.—[Official Report, Commons, 23/6/15; col. 748.].

On Tuesday, he again told the Commons the same thing. I ask the Minister to explain quite unequivocally whether leaving the convention is or is not on the table as a possibility.

Were we to replace the Human Rights Act with something weaker and no longer anchored in the convention, that would be used by Europe’s pseudo-democracies in the former Soviet empire to justify flouting European human rights law. As the noble Lord, Lord Lexden, said in his powerful speech, it is dispiriting that a great political party that played an inspiring role under Churchill in creating the European convention system should be led by Europhobes who would weaken the effective protection of human rights by the European Court of Human Rights and even by our own courts.

I say that the Government are zealots because they know that they are right and are not interested in genuinely open dialogue with those who disagree. When the Prime Minister decided not to rush to introduce a Bill while striving to renegotiate the UK’s membership of the EU, I wrote to Mr Gove welcoming the decision and asked him to meet to discuss the issues. I received no reply, not even a formal acknowledgement by his private office. Mr Gove has issued guidance to his civil servants on the importance of writing grammatically in their correspondence. Further guidance is needed from the Prime Minister on the need for good ministerial manners.

Mr Gove told the Commons on 28 May that, because the Official Opposition and the SNP oppose the Government’s plans, they,

“have already ruled themselves out of the debate on reform that we need to have”.—[Official Report, Commons, 28/5/15; col. 292.].

That no doubt includes Liberal Democrats, because we strongly oppose the manifesto threats. Then, on 23 June, Dominic Raab told the Commons that the Government intend to consult,

“fully, including with the devolved Administrations, in due course”.—[Official Report, Commons, 23/6/15; col. 748.]

I hope the Minister will explain in his reply how he squares that with Michael Gove’s statement. Can he tell us the discussion that Michael Gove had with the Justice Minister in the Scottish Government last week, and whether it included the Government’s human rights plans?

I served as a member of the Commission on a Bill of Rights that reported in 2012. The Minister was a fellow commissioner. You had to be a masochist to serve on that commission. He wrote a separate paper with another Conservative commissioner, Jonathan Fisher QC, in which they attacked the Strasbourg court for what they regard as undue judicial activism and suggested that the cause of human rights would be better served by withdrawal from the convention so as to free it from the strictures of the court.

Their approach was embodied in the Conservative election manifesto. Before those pledges were made, the Prime Minister removed Dominic Grieve as Attorney-General, who explained in the debate this week that the Human Rights Act has conferred,

“huge benefits on this country”.—[Official Report, Commons, 30/6/15; col. 410WH.]

The former Solicitor-General, Sir Edward Garnier, said in the same debate that,

“the political reality is that there is no majority in this House”—

that is, the other place—

“and there certainly is not in”,

the House of Lords,

“for a repeal of the Human Rights Act—still less for our removal from the European convention”.—[Official Report, Commons, 30/6/15; col. 418WH.]

Dominic Raab is concerned that what he calls “rights inflation” has diluted personal responsibility. The only example he gives is of a claim that failed, and he complains that the Human Rights Act has exposed us unnecessarily to too much “judicial legislation”, as he puts it, in Strasbourg and at home. These criticisms are not, in my view, fair or reasonable.

This Government threaten not only our culture of liberty and respect for the European rule of law but the unity of the UK. However much the Government say they will consult the public, they are guilty of at least the appearance of prejudgment and a lack of interest in seeking a consensus on what are major constitutional issues. If the Government go ahead with their plan to tear up the Human Rights Act and flout judgments from Strasbourg with which they disagree, they will face deep hostility in Scotland, Northern Ireland and Wales and, I dare say, much of England, too. The public will not welcome a weakening of the legal protection of their fundamental rights, and the unity of the nations will be undermined.

If Michael Gove was serious about a one-nation justice policy, he would not adopt the policy that he now seems to be pursuing. There is a crisis in what is a two-nation civil and criminal justice system. What use is the rhetoric of a UK Bill of Rights if only the wealthy and the powerful can enforce those rights in our courts?

--- Later in debate ---

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

My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode.

On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him.

Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails.

Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression “snoopers’ charter” has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things.

The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area.

In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy.

I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.

We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are “more restrictive” than those in the convention.

The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act.

The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights.

Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.

[Lord Lester of Herne Hill]

The Minister and I were on that commission. Is it not right that our report, which I have here, showed that there was overwhelming support for the Human Rights Act in Scotland, Wales and Northern Ireland, and among those who answered our two consultations?

[Lord Faulks]

I am grateful to the noble Lord, and of course I shall come to the question of Northern Ireland and Scotland in due course. There were two consultations, of which the Government will take account, along with their own consultation, to enable them to form the fullest picture possible of the way forward.

Section 2 of the Human Rights Act, as noble Lords have correctly observed, requires courts only to take into account the Strasbourg jurisprudence. As the noble and learned Lord, Lord Carswell, frankly admitted, the superior courts—the Supreme Court and the Court of Appeal—went rather further than simply taking into account the Strasbourg jurisprudence. I think that it is now generally acknowledged that the Ullah case involved a wrong turning. As noble Lords have said, it is true that something by way of a dialogue has ensued. It is also true to say that the Supreme Court has shown something of a retreat or modification of its approach to Section 2. None the less, there is need—there may be some general agreement on this—for clarification. The Strasbourg court should not be demonised, as some of its decisions would continue to be useful, whatever our precise relationship with it, but it may not be the only source of wisdom. We should not pivot entirely off the Strasbourg court when there are useful decisions elsewhere in the world—and, of course, it should not impede the development of the common law as it has always developed.

The convention was drafted, as has been said, by Conservative politicians, and is a remarkable achievement in itself. To encapsulate human rights is perhaps a philosophical task, but I do not think the Government have a difficulty with how they are expressed—it is, of course, only in their interpretation. However, the convention must be seen in the context in which it was drafted, in the aftermath of the Second World War, just as the Magna Carta, so much commented on, must be seen in its particular historical context.

I should make it clear, in answer to a number of questions, that it is no part of our plans to leave the convention. The noble and learned Lord, Lord Brown, referred to the number of cases that he had lost, no doubt having valiantly argued them for the Strasbourg court. When our British Bill of Rights becomes law, as I hope it does, there will still no doubt be some cases before Strasbourg and the successor to the noble and learned Lord, Lord Brown, may achieve better or worse results.

The Prime Minister, in his speech at Runnymede—

Criminal Justice and Courts Bill

Lord Lester of Herne Hill Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Farrington of Ribbleton (Lab)]

My Lords, I do not understand to which procedure the noble Lord referred. I can see no example of the negative or the affirmative procedure. In any case, in your Lordships’ House we either accept everything or vote it down completely; that is not amendable.

I approach this as a parent and a grandparent and as somebody who has been on a police authority, a social services committee and an education committee. I have visited secure establishments. Let me reassure noble Lords who believe that those of us who are expressing concern are not concerned about reoffending. I am concerned about reoffending for the sake of other young people as well of as the young people themselves. I am deeply committed to extending anything that will help young people not reoffend. However, I ask noble Lords to imagine that they are members of a local authority considering this proposal. Placed on you by law would be a duty of care to the young people concerned. Negligence could well end up with proceedings being taken against you.

We owe it to those young people to ask about this. I accept that the argument about secure colleges is lost, except for these two groups. I remain deeply uneasy. I cannot possibly do anything other than accept the noble Lord’s Motion and sleep easy believing that we have fulfilled our duty of care.

I again ask the Minister, for whom I have respect: why on earth will we not be allowed to debate and offer detailed observations before any decision is taken? That is a simple proposition. If the Government are proved right, your Lordships’ House will listen and be fair, but we are not being offered that. I ask every noble Lord to say to the Government: at least convince me before you ask me to reject the Motion of the noble Lord, Lord Ramsbotham.

[Lord Lester of Herne Hill (LD)]

My Lords, I wonder whether my noble friend the Minister could add two further questions to the three asked by my noble friend Lord Carlile, which will help me in deciding exactly what to do. First, will he confirm to the House that neither the affirmative procedure nor the negative procedure is to be applied before the scheme is brought in? As it stands, the scheme can be brought in by the Minister without either. If that is right, will he then explain why the Government decided in the other place that they would ensure that the affirmative procedure would be used to the extent that the Government wanted to authorise the use of force, but not otherwise? Why is the affirmative procedure being used in that case but not in this?

My other question is this. I have looked in vain at the debate in the other place to see whether they had the opportunity to consider the extremely powerful points made by the noble Lord, Lord Ramsbotham, with an answer by the Minister. I cannot find anywhere in Mr Andrew Selous’s speeches on 1 December even the beginning of a reply to the noble Lord’s points. I ask that question because, before taking the solemn step of sending the matter back to the other place, it is important to know what happened. If I had seen a rebuttal of the points of the noble Lord, Lord Ramsbotham, that would affect the way in which I will behave, but I ask my noble friend the Minister whether I am right in saying that the noble Lord’s points simply went unanswered.

[Baroness Benjamin (LD)]

My Lords, I would briefly like to speak on Motion A1, which would ensure that girls and younger children are kept out of secure colleges as we know them. We know them to be tough, intimidating and challenging places. The children’s charity, the NSPCC, believes it would be unsafe, inappropriate and potentially damaging to hold girls and under-15s in such institutions, especially as they would be with many older boys. The main reason for this is that many of the girls in custody are highly likely to have experienced sexual abuse. Placing them in custodial institutions may be traumatising and damaging to their rehabilitation. Placing girls and young children in secure colleges will cause serious and unprecedented safeguarding risks that should be considered.

Every child deserves to have the best education on offer, to help them prepare for the future and to help them cope with life. But to reach their full potential, children need to feel safe and not intimidated or bullied. We know that these environments will be made up of the most troubled children in the country. There is a need to give these vulnerable children the confidence to reach their potential, to help them engage with their education and to give them stability and consistency. The evaluation report by Ofsted does nothing to address these serious safeguarding concerns. I ask my noble friend the Minister: how will these concerns be addressed? What type of facilities will be put in place to give children and young people the stability, safeguards and requirements that are needed to deal with their mental and physical health and well-being? I look forward with great anticipation to my noble friend’s response, and hope he gives full consideration to our concerns today. I will accept nothing less than a compromise.

--- Later in debate ---

[Lord Lester of Herne Hill]

Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

[Baroness Lister of Burtersett (Lab)]

My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.

I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.

I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,

“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.

Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.

To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.