Child Abuse: Waterhouse Inquiry

Lord Mackay of Clashfern Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord McNally]

My Lords, I sincerely hope that that well known twitterer on the Front Bench opposite has not put my name on to this. I can understand where the noble and learned Lord is coming from. When we ask a senior judge to carry out an inquiry and they do so with the thoroughness with which the Waterhouse inquiry was carried out, there is a certain duty to respect the integrity of that work. I hope that the noble and learned Lord will also accept that the situation that we faced was not just that of a single individual coming forward but of a large amount of accusations being bandied around and a great deal of public concern. The Macur review terms of reference have been more widely drawn. Mrs Justice Macur will look at whether any specific allegations of child abuse within the terms of reference of the Waterhouse inquiry were not investigated. Quite frankly, the strength of public feeling justifies us going through with the Macur review.

[Lord Mackay of Clashfern]

My Lords, what was the basis for concluding that there was any question of whether the Waterhouse inquiry did its job properly when this announcement was made? I knew Sir Ronald Waterhouse as a very distinguished and conscientious judge. I was in touch with him when he was doing this inquiry, and I know the terrific effect it had on him, from the harrowing nature of his work in that connection. I feel very strongly that it is utterly wrong to cast aspersions on that work unless there is some basis for doing so which one can rely upon.

[Lord McNally]

My Lords, that statement, coming from such a source, reinforces what I said. When we have asked a distinguished judge to carry out an inquiry, we have to be extremely careful as to whether they can be second guessed. I do not think that anything that the Prime Minister or the Government are doing calls into question the integrity of the Waterhouse inquiry. As we always are when distinguished judges take on these difficult tasks, we are in his debt for doing so. However, the review of the Waterhouse inquiry will look at whether any specific allegations of child abuse were not investigated. The serious allegations that have been made merit a further thorough investigation.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Mackay of Clashfern Excerpts

Wednesday 25th April 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I strongly support the noble Lord, Lord Pannick. It is manifestly absurd—to me, at least, and it may be to other Members of this House—that this particular amendment should be treated as having anything to do with financial privilege. I have always been very hesitant to vote against the Government at the ping-pong stage, as I have always thought that they should get their business through. I voted with the noble Lord, Lord Pannick, on Monday because of the financial privilege point, and for that reason I say today that, whatever else has been said, I find it inconceivable that the Minister in the other place should again have called it financial privilege.

[Lord Mackay of Clashfern]

Perhaps it is worth pointing out that when this amendment was called, the Speaker of the House of Commons intimated that financial privilege was involved in the amendment. The reason for that is not explained as part of House of Commons procedure. Your Lordships know that I have had some difficulty in the past with references to this feature in relation to other Bills. The fact is that it is not for the Government, at the beginning, to mention this point. It is taken by the Speaker on behalf of Parliament and on behalf of the House of Commons. I have no doubt that, as Speaker Martin told us the last time, he does so on advice from the Clerk of the House of Commons. The Government then proceed from there. They could, if they wished, ask the House of Commons to support the amendment, notwithstanding that it involved financial privilege, but the basic ruling that financial privilege is involved seems to come from the Clerks of the House of Commons. I confess that their way of dealing with the matter is not something that I fully understand.

[Lord Woolf]

Before the noble and learned Lord sits down, perhaps he could assist me with regard to the question of financial privilege. In view of what he just said about the Government’s ability to invite the House of Commons to consider the amendment notwithstanding the point of financial privilege, does he accept that the Government could also have taken the action of saying, “We do not accept the amendment for good reasons”—which would be identified—“and, in those circumstances, we ask the House to indicate, in view of what has been said in this place, what its view is of those matters”? Financial privilege has no substance in fact. As all lawyers know, if the facts are totally inconsistent with the conclusion that is reached, that is wrong as a matter of law. An appellate court will always interfere with a fact-finding tribunal’s decision if it is wrong in law in that sense.

[Lord Mackay of Clashfern]

My Lords, if that is directed at me—

[Lord Woolf]

It is. Perhaps I may make that clear to the noble and learned Lord, whose views I respect so much. I therefore request him to assist.

[Lord Mackay of Clashfern]

My Lords, the practice of the House of Commons, as I understand it, is that when an amendment is called that involves financial privilege—in the opinion of the Speaker acting on the advice of the Clerks—this is intimated; and my understanding is that the Government would not be able to challenge that at all, just as we, as a matter of practice, do not challenge it either, although sometimes there have been occasions when some have felt there was a possible reason for challenge. However, as a matter of practice, we do not do that. It is open to the Government—notwithstanding the fact that financial privilege is involved—to invite the House of Commons to agree to an amendment that involves financial privilege. Then the Speaker has to certify in the Journal that a matter involving financial privilege has been passed by the House of Commons. The reason for that is that the House of Commons requires, generally speaking, a money resolution in respect of any expenditure involved in a Bill; and if a Bill involves expenditure, a money resolution has to be passed at some stage during the course of the Bill.

In this procedure, there is no room for a money resolution as such, because that happens earlier, but the signification made by the Speaker—in that situation where the House of Commons has decided, notwithstanding that financial privilege is involved, to agree to the amendment, in whole or in part—goes into the Journal in order to replace the need for a money resolution, and it of course authorises the Treasury to disperse money on the basis of that resolution of Parliament. That has nothing to do with the question of whether or not the amendment should be agreed, but, so far as concerns this House, if the resolution is based on financial privilege, the understanding has been—notwithstanding how difficult it might be on occasion for some of us to understand exactly how it arises—that we do not dispute that proposition.

[Lord Howarth of Newport]

Perhaps I may put it to the noble and learned Lord that while the exposition he has just given seems to be entirely correct, what is interesting—and this may not be a matter on which he personally would wish to comment, although I hope the Minister will do so—is why the Minister chose to emphasise at the outset of his speech that the amendment was subject to financial privilege. Of course it was. The Speaker made it clear to the House that that was the case. However, the Government could have asked the House to waive financial privilege and chose not to do so. That seems curious in an instance where nobody has been able to identify the expenditure implications of the particular resolution. That is what is perplexing us. Some of us have a larger worry about the practice that the Government have adopted of brandishing financial privilege at the outset of speeches in which they seek to refute or reject the advice of the House, because it tends to close down the argument. It leaves us wondering what the Government consider the useful role of this House to be.

--- Later in debate ---

[Lord Mackay of Clashfern]

There is one question I would like to ask the noble and learned Baroness. I understand the point about time limits; I listened carefully to what was said about that. I tried to follow fully what she was saying and I think that, on the whole, I succeeded in doing that. However, she said—and I know that this can happen—that a woman subjected to domestic violence may do nothing about it at the time and then wants to bring it up, very properly, later on. I do not at the moment see where that situation is covered in her amendment. I can see the relevance of the time limit, but when the woman in question has not done anything about it at all—except suffered it, which is enough—I do not at the moment see that that situation is covered, unless it be of the type prescribed in regulations. That is an open-ended thing, but so far as the rest of it is concerned—having listened, I hope, carefully and understood fully, I think, what the noble and learned Baroness was saying—I have not quite grasped that particular point.

[Baroness Scotland of Asthal]

I hope that I can help the noble and learned Lord. On the last occasion on which I spoke, I said that I accepted that even my amendment would leave out many people who needed and should have help and assistance, and that I was not happy that even my amendment would go as far as it should, but I was drawing back from the ideal, accepting that the Government wanted a very narrow gateway. That is point number one.

Point number two is that if, in such a situation, the woman had available to her and could produce evidence that there had been a number of police calls to her home, notwithstanding the fact that she had not pursued it to the extent of asking for or supporting a charge and a conviction, then she would still have evidence available to her which she could rely upon, notwithstanding the fact that while the parties lived together she had not pursued it as she should have. One reality that we have had to face for a number of years is that, quite often, victims will hide from the perpetrator, as opposed to confronting him, but there are occasions when the perpetrator will find and pursue the victim and then the victim has no choice but to respond. It is in those sorts of cases that, if we do not give a greater degree of flexibility, we will find that there is difficulty. That woman might have not gone to the refuge, but she may have received telephone or other support from it indirectly. Therefore, part of our amendment is asking for not only admission to a refuge to be included, but also other evidence that could be given by the third sector or professionals to say that there was valid evidence upon which the woman would be able to rely to prove that there had been domestic violence.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Mackay of Clashfern Excerpts

Wednesday 14th March 2012 Lords Chamber

[Baroness Kingsmill]

My Lords, I should like to speak to the amendments in my name. I am encouraged to do so because, as a former personal injury lawyer, I have a deep commitment and engagement with accessibility of claimants to fair and appropriate redress when they are suffering personal injury.

There has been a lot of discussion about the so-called compensation culture in our legal system, but I refute that: there is no such thing as a compensation culture. In fact, if you exclude motor claims, the total number of claims has fallen from 116,380 in 2001 to little over 100,000 in 2010-11. It is 15 per cent lower than that it was in 2001. The Motor Insurers’ Bureau states that total claims provision and expenditure fell by 10 per cent compared to 2009. It is important that we all understand that the so-called compensation culture is a myth, a perception which is very far from reality.

That is why I have tabled some of the amendments. They are technical. It is possible that there have been oversights by the Government. I know that a 10 per cent increase in general damages has been discussed as a possibility. The Government have said that they will implement the 10 per cent increase by unenforceable means, such as requiring the judiciary to increase damages all round, but that is not enough. It is appropriate and important that that should be in the Bill. I should like to hear the Minister's comments on that. When we are talking about something as important as access to justice, people should not be burdened with additional uncertainty about what the costs will be.

I speak also to Amendment 141ZC, which would protect claimants against excessive costs in the event that they lose their claim. It is fully in the spirit of Lord Justice Jackson’s recommendations. As other speakers have said, the amendment implements Lord Jackson’s proposals for qualified one-way costs-shifting by including them in the Bill. That seems a very sensible proposal. It means that claimants would not be scared off by the risk of astronomic costs in the event that they lose. That will encourage access to justice. There is nothing quite as scary for claimants as the feeling, when there is uncertainty about their case, that they will be stuck with a very large bill at the end of it. I would like that to be stated clearly in the Bill and I join noble colleagues in asking the Minister to consider the amendments.

[Lord Mackay of Clashfern]

What is the justification for the costs-shifting system in the case where a person has been able to get a funding arrangement? If a person decides to take his case without a funding arrangement, why should he not have the benefit of the costs-shifting system just as well as the other? Why should the fact that someone has managed to agree with his solicitor be an important point as between the claimant and the defendant? I have said before, and I repeat briefly, that I have heard many expositions from the late Lord Simon of Glaisdale about the unfairness of the legal aid provision in that it deprived successful defendants of their right to recover their costs. This is an even more difficult situation. This is nothing to do with the state and the state’s grant of legal aid but is a question as between the client and solicitor. The client may well decide, “I don’t want to pay this success fee in any event. I am prepared to take my case and if I lose, why should I have to pay the costs of the other side when my colleague, who decides to pay a big success fee to the solicitor, is going to be protected?”.

--- Later in debate ---

[Baroness Finlay of Llandaff]

I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.

As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.

[Lord Mackay of Clashfern]

My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.

Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.

Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases be similarly dealt with.

If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.

If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.

This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?

I should perhaps have said that I of course associate myself with the congratulations offered to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.

[Lord Alton of Liverpool]

Perhaps I may put two points to the noble and learned Lord before he sits down. The system as it operated under his stewardship did not take funds away from the claimant when they were successful in litigation. That is surely the difference from the matter before your Lordships’ House. When the noble and learned Lord oversaw the system, it was fair and just, and did not raid any of the funds that the claimant was able to receive in compensation. We are merely seeking to maintain the status quo in the way that it operated during his time.

As to exceptional circumstances, surely, if someone is terminally ill, they are exceptional or sui generis, as described by the noble Lord, Lord Newton, and my noble friend Lady Finlay in their interventions. If people in this group are terminally ill, that is surely what makes their cases exceptional.

[Lord Mackay of Clashfern]

My Lords, it is possible to describe other types of illness and the basis for claims in very much the same language as that used by the noble Lord, Lord Walton of Detchant, and the noble Baroness. So far as the first point is concerned, in the system as I introduced it the success fee would be payable by the claimant out of his or her damages.

[Lord Bach]

My Lords, we have had a powerful and emotive debate and I want to be very brief because the House wants to hear from the Minister, who is obviously sympathetic, as was demonstrated by what has been said about his visits made and meetings with noble Lords on this issue. I am proud to support the amendment in the name of the noble Lord, Lord Alton of Liverpool, also supported by the noble Lord, Lord Avebury. I am delighted that the noble Lord, Lord Alton, supports my amendments in this group that deal with other industrial diseases—Amendments 132AB, 132D and 141ZB. In response to the noble Lord, Lord Thomas of Gresford, I say that if he thinks that other diseases are also important to deal with, he should look carefully at the amendments I may move in due course.

I shall cut down appreciably on what I wanted to say. We know that asbestosis is not the only problem, but speeches have been made in this debate by experts who suggest that it is a problem out on its own that should be considered separately, as it will be this evening. It is because asbestosis is not the only problem that I tabled my amendment that deals with other serious industrial diseases. I do not need to go through the types of diseases that I am talking about, but they are the by-products of hard work. All these are inflicted on hard-working people who have spent their lives contributing to our society and economy, often in industries that no longer exist, and in heavy industry, manufacturing and public services. As has been said by many noble Lords, many of these diseases do not manifest themselves for years and are the legacy of coal mining, our proud tradition of manufacturing, steel making and other professions.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Mackay of Clashfern Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Boswell of Aynho]

My Lords, I rise in support of my noble friend Lord Thomas of Gresford’s amendment with considerable diffidence, as a layman tiptoeing for the first time into consideration of this legislation. As the noble Lord, Lord Davies of Stamford, has already reminded the Committee, the context is the further constriction of legal aid. I think the concern of all lay people, as well as practitioners, must be that this will in some way inhibit people’s access to justice unless they fall within narrow categories.

I do not wish to detain the Committee at length on personal cases, but I first had experience of this—as typically happens, by chance—in relation to a personal injury claim involving a member of my family, which took place in the 1970s. As it happened to take place on a British-registered ship, which was at that time within United States territorial waters, it gave rise to a certain interest in the forum. At that time there were no contingency fee arrangements at all within the United Kingdom. However, as it was possible to bring litigation within the United States, I was able to avail myself of such an arrangement. I will say no more about it other than that it did provide an opportunity that would otherwise not have been available to me.

Nobody wishes to make it impossible for individuals to pursue their personal injury claims or indeed for small and medium-sized enterprises to have redress for their commercial disputes with large multinational or well-funded companies or bodies. However, it has become clear recently that third-party litigation funding was growing in potential and was a growing practice—and, potentially, a growing problem across virtually all developed countries, broadly simultaneously. I have sought to inquire further into this by means of Parliamentary Question. I go along with my noble friend who moved this amendment very much in the spirit of inquiry to try to focus on the issue and see that it is properly handled. However, I am a little less optimistic than the noble Lord, Lord Davies of Stamford, as to whether arrangements that are based on transparency and the market solution will in fact work to the wishes of the public at large.

It seems that we need a fairly robust code. My noble friend has sketched such a code to manage this, with further details to be supplied in due course by the Lord Chancellor. Those who are practitioners in the field will accept that there has to be some boundary to it. My concerns are threefold. First—and my noble friend has already referred to this—the potential for conflicts of interest can be pretty explicit in the arrangements, where it may be in the interests of the funder to stop the case but not in the interests of the litigant. Secondly, there is the question of transparency. I do not spend my life reading court reports, but they have the names of counsel, the instructing solicitor and, obviously, the parties, so you do broadly know what is going on. However, in cases where people are operating behind that, with arrangements that are being concluded privately, it becomes less clear what is happening.

Thirdly—and I confess considerable distaste for the potential here—one can imagine a situation where it is not merely a matter of somebody taking on a particular venture but where these claims are warehoused, securitised or packaged in a bundle and sold on to third parties who have no interest in the interests of the litigant and probably no knowledge of who they are. It might simply become a kind of impersonal transaction. I feel myself very uncomfortable with that. If I go no further than members of my family who, unlike myself, happen to be lawyers, there is a certain resonance—even if they are not specialists in this area—in the concepts of maintenance and champerty. Those are enshrined in our traditions for a very good reason. We do not want to have a purely commercial interface in these matters. On the other hand, we do not want to stop access to justice or stop perfectly reasonable and above-board arrangements by responsible people operating within a framework.

I feel a welling-up of some disquiet in this area. I have a feeling that we need to set boundaries on it and a fear that there might be potential for some hard case or scandal that would excite public interest—and the public would then ask how we had slept on this. I look forward to the Minister’s reassurance that the Government are on the case and that it will be sensibly—not restrictively but properly—regulated and observed.

[Lord Mackay of Clashfern]

My Lords, the introduction of conditional fees into our system was an innovation in the rules against maintenance and champerty. Therefore, this is an area with which, at least some time ago, I had a certain degree of familiarity. It carries with it the risks recognised in these prohibitions that went back to the very beginnings of the system of common law.

When I sought to introduce the conditional fee, I tried to do it with a good deal of care as to the areas in which it would operate, as my noble friend Lord Thomas of Gresford reminded us. I was certainly of the view that it would be developed according to our experience of how it worked. On the whole it has worked in the sense in which I thought that it was likely to work when I proposed it. It was to deal with the area that the noble Lord mentioned of those who did not qualify for legal aid but were not sufficiently well resourced to undertake litigation on their own. It met quite a considerable degree of need in that area, and it has been allowed to develop.

Of course, changes were made. When I introduced the conditional fee, I did so on the principle that the defendant had no real responsibility for the relationship between the claimant and his lawyer and therefore that the arrangement by means of a conditional fee should not affect the liability of the defendant. Those of your Lordships who are old enough to remember the presence of Lord Simon of Glaisdale in this House will remember that very often, when anything about legal aid came up, he dealt with the development under which, if a party had legal aid, the defendant would not be allowed to recover costs without leave of the court. The contribution of the claimant with legal aid to the defendant’s costs was limited—often to zero. Lord Simon of Glaisdale thought that was completely unjust, and your Lordships may remember that it was not once that he said that. Ultimately, I began to understand the force of his argument. However, that remained the law on legal aid, and I suppose that it is still the law on legal aid.

When I was introducing the conditional fee I did not feel that it was the same thing as a statutory provision for the claimant which was provided by legal aid. It was a private arrangement between the solicitor or the lawyers involved and the claimant, so I did not have any such effect. In due course, my successor introduced effects on the defendant of that particular relationship and the result was, as we know, a considerable escalation in the cost of litigation, which Lord Justice Jackson analysed in a report that cannot be criticised for its brevity. The consideration was very detailed indeed, but I think that in the end he came to the conclusion that the system as it originally operated was more just than the new system. I, of course, therefore support Lord Justice Jackson's conclusion in that regard.

The noble Lord, Lord Bach, points out to me from time to time, when we have a chance to discuss this, that we are not just going back to my situation because legal aid was even more liberal in my time than it seems to be now. If this Bill is passed without any effect on the legal aid proposals, then it will continue to be so, but if the legal aid proposals are effected, there will probably be rather less legal aid than at the moment—certainly a good deal less than when I was dealing with these matters. To that extent it is a different situation, but from the point of view of the litigant in connection with conditional fees, what Lord Justice Jackson recommended was to go back to my system.

That was, as I said, an innovation on the rules against maintenance and champerty because the lawyer was given an interest in the outcome of the litigation, which on a strict view of these rules might not have been allowed. However, statute was able to allow it and there was no further question about that. Third-party funding is a further development, which goes into the area where these dangers had been seen for many years. I therefore respectfully suggest to your Lordships that that is an area in which a good deal of caution is required before we allow it. For example, in relation to the conditional fee we allowed it in certain areas but not in others. In particular, as my noble friend Lord Thomas reminded us, it was not allowed in the criminal area or in family law. If third-party funding is to become at all common in our courts, it needs to be subject to fairly careful control. Otherwise the dangers foreseen in the old law will occur.

I cannot think of a better way of doing that than by giving the Lord Chancellor power to regulate the situation. He can, of course, from time to time, alter these regulations as he sees the practice developing. For example, if some unforeseen difficulty arises he could restrict further. If on the other hand it seems to be successful, he could open the scope further. I strongly support the principle of the amendment moved by my noble friend Lord Thomas of Gresford. The detail of it will require to be worked out—primarily by regulation, I should have thought—and the question is whether the scope of this amendment is adequate to give sufficient power to the Lord Chancellor to control all aspects of the matter.

This seems to be a pretty thorough kind of amendment, but obviously I await the Minister’s comments on the matter. That regulation is required seems absolutely clear. A voluntary code, particularly one that falls short of Lord Justice Jackson’s recommendations on the matter, is not at all sufficient. This needs statutory control under regulation, particularly in relation to the costs that the third party will have to bear if the litigation is unsuccessful. For example, if the third party can get out of the contract before the case goes to full proof, is he thereby going to escape the costs of the litigation that he has taken responsibility for helping to start?

There are difficult issues connected to this that are dangerous to the justice of the system that we all prize. It therefore seems very wise that the matter should be the subject of statutory control by regulation in the hands of the Lord Chancellor.

Legal Aid

Lord Mackay of Clashfern Excerpts

Tuesday 31st January 2012 Lords Chamber

[Lord McNally]

My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.

[Lord Mackay of Clashfern]

My Lords, does my noble friend agree that the law centres are probably the most efficient and economical way of providing advice for those who are not particularly well off but who really need advice?

Human Rights Act 1998

Lord Mackay of Clashfern Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord McNally]

I think that those are rather strong words. I have said before that in a democracy where there is a separation of powers there can be a healthy relationship between parliamentarians and the judiciary, whereby parliamentarians can sometimes express concerns about how the judiciary has interpreted some of Parliament’s Acts and, likewise, the judiciary may occasionally pass an unkindly word about the behaviour of parliamentarians. As long as that is kept on a basis of mutual respect and due courtesy, it is a healthy way for a democracy to go.

[Lord Mackay of Clashfern]

Does my noble friend agree that it would be wise for all of us to be careful how we speak?

[Lord McNally]

My Lords, that is a piece of advice that I hope echoes and re-echoes down the Corridor.

Public Bodies Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Whitty]

My Lords, my apologies for my premature intervention earlier. I will not repeat everything that my colleagues have said, but we have a potential dilemma here. People are in broad terms in favour of a merger, subject to certain caveats, but the consultation paper indicates that the total approach to competition policy and consumer policy in which this new merged body would operate has yet to be determined. Many of the options in the paper—changes in the mergers procedures and in the relationship between the new Competition and Markets Authority and the sector economic regulators—would indeed, as my noble friend Lord Dubs implies, normally require primary legislation. Changes in the ability of people to raise super-complaints probably do not require primary legislation but the implication of giving that right to SMEs is that some of this is about monopsony and oligopsony as well as monopoly and oligopoly. That certainly requires some explanation and some primary legislative change.

The reality is that the arrival of this document a few days ago indicates that the Government’s strategy of introducing a new competition institution by the merger of these two bodies can be properly assessed by Parliament only if you have the totality of the change to the competition regime as a whole. It ought to have been a principle of this Bill that bodies whose basis will require primary legislation should not therefore be dealt with solely on the basis of secondary legislation provided for by this Bill. We saw a smaller example of this the other night when the Government withdrew in effect the proposals for the Security Industry Authority, which will require primary legislation to change to where the Government wish to go.

There is a bit of a constitutional issue here that the Government should be aware of. In general, it is a good idea and I do not propose to oppose it, but the Government are in a bit of a dilemma here and in reality we will have to have a competition Act before we can deliver the new body that the Government are envisaging.

[Lord Mackay of Clashfern]

My Lords, it is important that this is just a preliminary stage to enable this consultation to happen and, if the results of the consultation are sufficiently clear, to go forward with an order that is, as I understand it, amendable—my noble friend will correct me if I am wrong but I think I am right. If one had to do a lot of these exercises through full primary legislation, not only in competition but in all the other areas that this Bill covers, one would have no time in Parliament to do anything else. A review of this kind requires some mechanism of this sort, and we have endeavoured to make the mechanism as close and as secure as we can. It would be a pity to lose this opportunity to do what might be possible in this way, and, so far as I am concerned, putting this into the Bill at this stage is a step in the right direction.

[Lord Taylor of Holbeach]

My Lords, I thank all noble Lords who have spoken because I think this has been very useful debate. I emphasise the point made by my noble and learned friend that by inserting these bodies into Schedule 2 we are not predetermining their merger; we are facilitating their merger after a consultative process. Indeed, although statutory instruments are not normally amended in this House, an enhanced procedure in this Bill will enable a full consultative process to take place on the statutory instruments that might be brought before Parliament.

More to the point, the whole process has been evidenced in the foreword, and if noble Lords have got no further than page 1 they will see the foreword by my right honourable friend the Secretary of State Vince Cable in which he talks about the wish to be transparent and open about this process. Indeed, it is in the Government’s interest because the contributions made by noble Lords today have been remarkably powerful and useful. I hope all noble Lords who have spoken will feel free to involve themselves in the whole consultative process, because every single one of them will bring their experience to this regime.

I welcome the comments made by the noble Baroness, Lady Kingsmill, about the strategic objective—trying to get a unified Competition and Markets Authority in place with a primary purpose to be decisive, well informed and speedy. Business demands that of us. We live in a highly competitive world, but we can help ourselves and our fellow industrialists and businessmen by the way in which we construct markets and make sure that they operate in the country’s economic interest and in the consumer’s interest. Although the consumer interest part is being transferred—it will be much more heavily based in trading standards and Citizens Advice—the regime will be co-operative; trading standards officers will still feed in abuses of the market that have become apparent during their investigations.

The noble Lord, Lord Dubs, wondered whether small trading standards departments would be able to take on large organisations. With the backing of competition law, it does not matter how small the authority might be; the power of the law in this regard means that no business, however large, can afford to ignore it. Any systemic abuse through the structure of trading conditions is just the sort of thing that the new authority will take up and investigate at speed.

I am pleased that the idea of the panels is being welcomed. It is part of the detail in the consultation. In many ways, it would be wrong to use this speech to try to predetermine the outcome of that consultation, but there are in the consultative documents steers and guides, at least, to the sort of outcome for which the Government wish. I am moving my amendment today with the idea of facilitating that outcome. Parliament’s role will be to scrutinise both the consultation and anything that is produced under the Bill.

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[Lord Newton of Braintree]

I agree. It tempts me to extend my remarks a fraction further to a point I had omitted. The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less—about large amounts of administrative justice that relates to local authorities, including, in education, school admissions and exclusion appeals. Many people may regard this as trivial but it also includes the whole area of decriminalised car parking. These are things that affect citizens. They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice.

I made the point in my earlier speech—I will not repeat it in extenso—that the terms of reference of the Civil Justice Council are, in effect, identical to those of Administrative Justice and Tribunals Council. I will make a few further points before I conclude. Notwithstanding the disappearance of the CJC from Schedule 7 to the Bill, the Government have already cut its secretariat and merged it with that of the Family Justice Council. In respect of the various procedure rule committees, including tribunals, all of which were in Schedule 7, the Government have already put all the secretariats into the same team. They argue that this makes better use of resources. It probably does. However, my amendments simply go with that flow. They create the possibility of what I regard as rational alternatives to abolition, but they do not prevent the Government going for abolition if that is what they continue to want to do. Even if I cannot claim a reward for good behaviour, I can claim a response to rationality, reasonableness and a powerful argument.

[Lord Mackay of Clashfern]

My noble friend bemoaned the fact that the judges had all fled, but the noble Lord, Lord Elystan-Morgan, is still there.

[Lord Newton of Braintree]

I apologise to both my noble and learned friend and the noble Lord, Lord Elystan-Morgan. I had in mind those who contributed to an earlier debate. If they all now chip in to support me, I shall give them brownie points as well. My noble and learned friend Lord Mackay might help, too. I beg to move.

--- Later in debate ---

[Baroness Scotland of Asthal]

My Lords, since the noble and learned Lord, Lord Mackay, does not seem to be tempted by his noble friend’s invitation I rise to respond on behalf of Her Majesty’s loyal Opposition. Not surprisingly, we wholeheartedly support the amendment moved by the noble Lord, Lord Newton. I take this opportunity to commend the noble and learned Lord, Lord Howe, for his powerful intervention and for the work that he did in relation to the Ely inquiry. The House will know that that was seminal to the material changes regarding mental health which came after it.

I invite the noble Lord, Lord McNally, to consider carefully whether he cannot accept the amendments spoken to so ably by the noble Lord, Lord Newton. As we heard from the noble Viscount, Lord Eccles, in regard to the previous substantive debate that we had on the Youth Justice Board, this is enabling legislation. Notwithstanding the fact that the Administrative Justice and Tribunals Council can be abolished, there is nothing to stop Her Majesty’s Government thinking again. They are not bound to abolish it. If they want to abolish it, they should think carefully about how it can still be merged, used or modified in regard to other bodies. I invite the noble Lord to think again about this matter. If Parliament decides that there is to be no independent voice, it is very difficult to see how some of the challenges that have been so forcefully laid out by the noble Lord, Lord Newton, will be responded to.

The noble Lord, Lord McNally, will know the position in relation to legal aid which was touched on by the noble Lord, Lord Newton. As the Administrative Justice and Tribunals Council has recently said in its response to the Ministry of Justice consultation document Proposals for the Reform of Legal Aid, some material difficulties arise in this regard. Your Lordships will know that in its response the council opposed the proposed cuts to legal aid for administrative justice. It gave the example that welfare benefits legal aid costss £28.3 million in 2009-10, representing less than 0.18 per cent of the £16 billion value of benefits that are unclaimed every year. The success rate of legally aided clients in these areas is more than 90 per cent. The council believes that the Government bear responsibility for causing many of the appeals in the administrative justice system through poor decision-making, poor communication, delay and overly complex or incomprehensible rules. Not only will the legal aid cuts affect individual claimants, they will contribute to increasing work and delays in courts and tribunals that are already under pressure. How will such a challenge to the department that is also responsible for legal aid be made, made independently, and by whom? The value of an independent critical eye will remain present. Therefore, merging, modifying or otherwise dealing with this issue remains of critical importance.

I understand what has been said previously about the utility of the council’s work no longer being identified, but we have not had an answer to the question posed in Committee by the noble Lord, Lord Newton, and again now, regarding how the department responsible for all these administrative issues will deal with issues such as these. The difficulty will remain. The challenges are likely to be much more honed, because the issues that administrative justice touches upon in its remit, in terms of everyday lives, become increasingly broad. I invite the Minister to consider very seriously indeed merging the council with another body, modifying the constitution arrangements under Schedule 3, or modifying the funding or transferring the functions—but not to expunge them in their entirety.

The noble Lord will know that acceding to these amendments would not oblige the Government to do all or any of those things. They would be given the power and opportunity to do so if they, in their inimitable wisdom, decided, on mature reflection, that the same was necessary.

[Lord Mackay of Clashfern]

My Lords, in view of what has been said, perhaps I may take this opportunity to indicate that this amendment is eminently supportable and that I hope the Minister will respond positively to it. I felt that I did not want to make two speeches; I thought that I had made one already. Anyway, that is my position.

[Lord McNally]

My Lords, that convinces me only that the noble and learned Lord, Lord Mackay, can resist anything except temptation.

The noble Baroness gave some reasons why the Government should give themselves time to think on these matters. She pointed out that this is only enabling legislation, but, as I said in the previous debate, it is better that we have some clarity in what we wish to do. We are aware that the proposed changes to legal aid will put pressure on parts of this sector of justice, and that is why a concerted effort has to be made to drive up the quality of original decision-making. It is the departments and public bodies that make the original decisions that have the primary responsibility to ensure the quality of decision-making. However, this work with the decision-makers will continue, so as to improve getting it right first time. To drive up standards, we will seek to spread lessons learnt among relevant decision-making bodies.

The noble Lord, Lord Borrie, gave the game away when he said that the amendment and the consequential amendments were a perfectly legitimate and ingenious way of asking the House to reconsider a decision it had already made in Committee. However, the department has never hidden the fact that one of the reasons for the decision was saving money. However, as in the recent debates, almost throughout the Bill, opponents to what the Government propose seem to put enormous emphasis on the benefits that arm’s-length bodies can deliver and give no credit at all to the fact that one of the beauties of our system was that one check and balance on the delivery of policy was the direct line of responsibility running from Ministers in their departments through to the Floors of both Houses. We do not accept the idea that all these things have to be done by arm’s-length bodies, nor do I accept that the Ministry of Justice knows nothing and cares less about the wider issues of administrative justice. It is unfair to keep on throwing these attacks on civil servants who, in my experience, show an extraordinary commitment in their areas of expertise and are extremely willing to speak truth to power.

Parliamentary Voting System and Constituencies Bill

Lord Mackay of Clashfern Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, there are five amendments in this group. The noble Baroness, Lady McDonagh, has her name to one to them. I do not know if she is going to speak to it, but let me deal with them all briefly.

The amendment tabled by the noble Lord, Lord Lipsey, says that determining the size of constituencies should not be done by reference to the registered electorate nor by reference to the registrable electorate but by reference to the whole population of the constituency. The noble Lord, Lord Boateng, is saying that there should be an upper limit in relation to constituencies, just as there is a geographical upper limit in the proposed Bill, so that no constituency should have a total population which is more than 130 per cent of the electoral quota. My noble friend Lord Grocott proposes something slightly different from the others, which is that the Boundary Commission can take into account the explicit consideration of population growth. Where there are local government areas with rapid increases in population, on the basis of the current drafting, that would only be able to be used in relation to the 5 per cent deviation on either side of the electoral quota laid down by the Bill. And the final amendment in this group says we should have regard to the census.

All of these amendments wrestle with the problem that we discussed in the previous group of amendments—namely, what is to be done about the fact that there is substantial representation? I am not in favour of determining the size of constituencies as a starting point from people other than either registered electors or registrable electors. But just as the geographical size of the constituency, based on the burden on the MP who has to get around it, determines that no constituency should be bigger than a certain size, it seems to me to be legitimate to take into account whether or not one has an exception by reference to the total population. That means you still have the electoral quota approach. I see that the noble and learned Lord, Lord Mackay, is about to intervene. I am more than happy to give way.

[Lord Mackay of Clashfern]

I think that I am right in saying the amendment of the noble Lord, Lord Lipsey, relates to the electoral quota. It cannot be right to use population as the basis for calculating size of constituency with the 95 per cent to 105 per cent variation proposed in the amendment moved by the noble and learned Lord last night—I am assuming that the Government may think kindly of it. On that basis, the numerator and the denominator have to be in the same currency: either population or electorate. You cannot have the top of the fraction as electorate and the bottom as population.

[Lord Falconer of Thoroton]

That may be right. What I understand the amendment of the noble Lord, Lord Lipsey, to do, though he must defend it, is replace both the denominator and the numerator, because he puts the total population at the top of the fraction and the number of constituencies, less the two—or now the three—at the bottom and gets to the figure that way. I am not sure that I am following the noble and learned Lord.

[Lord Mackay of Clashfern]

The figure is essentially a portion of the population, whereas once you get to the stage of calculating size of constituency with the 95 per cent to 105 per cent variation, it is the electorate that is so far used. I have not seen an amendment which deals with that relationship. Both bases of calculation have to be the same. Which is the better one, I am not saying, but they both have to be the same.

[Lord Falconer of Thoroton]

As far as I understand it, the noble Lord, Lord Lipsey, is taking U as the total population in Rule 2(b) rather than the registered electorate and dividing it by 600 minus 2, now 3. That then produces something called the electoral quota. Paragraph 2(1)(a) of the new schedule states that the electorate of any constituency shall be no less than 95 per cent of the United Kingdom electoral quota and no more than 105 per cent. I assume that we do not need as a matter of drafting to amend paragraph (2)(1)(a) because the electoral quota is simply the number of the population. Therefore, it will be assumed, I assume, that it can be 5 per cent lower than the total population or 105 per cent of it, not 95 per cent or 105 per cent of the registered electorate. The noble Lord can explain it, but I think that it is consistent. I am sure that it is clear to everybody. [Laughter.]

I am rather against that approach. [Laughter.] That is ultimately because the way that our system works is that Parliament defines who is entitled to be on the electoral register. By doing so, it is in effect defining who is entitled to participate in the process of elections. It would be wrong therefore, as a matter of principle, to seek to define constituency boundaries by reference to people, some of whom may be entitled to be on the electoral register and some of whom may not. You will therefore find, for example, that there are constituencies in particular areas—I have in mind central London constituencies; for example, the City of London as well as Kensington and Chelsea—where the population is very high and appears to be very much larger than those on the electoral register.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, this is an important amendment and my noble friend Lord Lipsey has shown foresight in raising the matter. He will also have seen Amendment 79, which is in the name not of one of our colleagues on this side but of the noble Lord, Lord Teverson. The number of constituencies named in that amendment include not only Orkney and Shetland, the Western Isles in their Gaelic name and the Isle of Wight, but the Isle of Anglesey, Cornwall, the Isles of Scilly, the Highland Council area and Argyll and Bute. As my noble friend said, a number of us have tabled amendments in relation to areas that we have a particular knowledge of. My noble friend Lord McAvoy tabled one in relation to the Royal Borough of Rutherglen, which includes Cambuslang and Halfway, if I remember correctly.

I tabled an amendment in relation to the city of Edinburgh, arguing that Edinburgh should continue to have five constituencies once this boundary review is over and that that should be an instruction to the Boundary Commission in Scotland. There are a number of other amendments in relation to this, such as Amendments 66C, 78B, 79C, 79, 80, 81, 82, 85, 85A, 85B and 85C, which we will discuss.

My noble friend Lord Lipsey, with his usual sagacity, foresight and burning of the candle at night, has managed to table an amendment that, if the Minister was wise, he would see was like the amendment to Part 1 moved by my noble friend Lord Rooker. That amendment gave the Government flexibility in relation to dates for the referendum to be held on AV so that if any changes took place, the Government would not be forced to hold it on 5 May: they could have it at any time up to 31 October. This amendment also gives the Government flexibility, which is very wise.

I will not now argue the case for the five Edinburgh constituencies. I have a lot to say about them. I have a tour d’horizon for them just as I had for South Ayrshire—or Carrick, Cumnock and Doon Valley as it is now. I would like to describe some of the important facets of Edinburgh constituencies, but I will leave that until we get to Amendment 80. In the mean time, I am keen to support the amendment in the name of my noble friend Lord Lipsey, which gives us this necessary flexibility.

[Lord Mackay of Clashfern]

My Lords, it is clear to me that the amendment is correct. Therefore, I hope that the Government will accept it. It is simply a drafting amendment to take account of changes that have been made—and if the noble Lord is correct in his prophesying, some further changes will be made. This amendment takes account of that in an accurate way. There is no question of discretion or anything of the kind. It is simply a drafting amendment that takes account of existing changes.

[Lord Falconer of Thoroton]

I agree with the noble and learned Lord, Lord Mackay of Clashfern. My experience as a Minister was that when an amendment was passed even in opposition to the Government in Committee or at any stage of the Bill, the Government would bring the Bill up to date. Therefore, when it went back to the other place it would be a coherent Bill on which the Commons could then form a view about which amendments to accept. I completely agree with my noble friend Lord Lipsey. I hope that the Government will indicate that they will make the necessary amendment to reflect what happened earlier on today.

--- Later in debate ---

[Lord Campbell-Savours]

I had a fairly large prisoner mailbag. Prisoners get full service from Members of Parliament. Not only did they get full service, I visited prisoners from outside my own constituency on several occasions, including some of the most violent of offenders. Their stories were absolutely fascinating. It is a very interesting area of political representation.

[Lord Mackay of Clashfern]

At present, the law states that prisoners are disqualified under an Act of Parliament and, unless and until that is changed by Act of Parliament, there is no question of having to cater for them in this Bill. If and when a Bill is produced to change the 1870 Act—although I understand what the noble Lord is saying about that—it should answer the kind of questions that the noble Lord, Lord Knight, has asked. Until that happens, the law is as it has been since 1870. I am not going to deal with the merits of the issue, except to say that we believe in the rule of law, part of which is our country’s subscription to the European Convention on Human Rights and obedience to the decisions of the European Court of Human Rights. That court has said in this case that a blanket ban is wrong, which leaves at least a certain amount of discretion to Parliament and the Government to decide what the change is to be. Until that happens, it is not for us here to speculate, because there is plenty for us to deal with in this Bill without introducing more material into a Bill that is not yet drafted.

[Lord Dubs]

My Lords, I very much agree with what the noble and learned Lord, Lord Mackay of Clashfern, has said. Let me therefore briefly add some comments. When the time comes, which I hope will not be too long, for the Government to bring forward their measure to give prisoners the vote, we will have to ensure that in that process we amend this legislation to accommodate it.

Public Bodies Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 11th January 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, I am afraid that I cannot claim, like the noble and learned Lord, Lord Woolf, not to have taken part recently in proceedings on this Bill, because I have been a persistent defender of my Front Bench, nor do I intend to stop being so today.

However, I want to associate myself in two respects with the remarks of the noble Lord, Lord Ramsbotham. First, I think that the Bill leaves—to put it mildly—a lot to be desired. Secondly, I think that the noble Lord, Lord Taylor of Holbeach, is to be congratulated on the way he has dealt with this poisoned chalice. I am glad to see that, if I have read the runes aright, the person speaking to the proposals today will be a Minister from the Ministry of Justice, which is where the proposals originated from and where any blame for them, if blame is justified, should lie.

By way of other brief preliminary, I should say that when I first saw the schedule of headline decisions that was published in early October—this picks up a point made earlier by the noble Lord, Lord Lester—I could find no intellectual coherence at all in the Ministry of Justice’s proposals, which seemed to be piecemeal suggestions with no connection between them whatever. I hope, therefore, that at least we may have some coherent explanation about the pattern of these proposals and decisions for procedure rule committees, justice councils and other bodies, including CAFCASS, that are scattered about, most of which are now to be withdrawn from Schedule 7 by the amendments that have been helpfully tabled by the noble Lord, Lord Taylor of Holbeach.

However—I do not know whether the noble and learned Lord, Lord Woolf, has spotted this—unless my eyes have deceived me the Civil Justice Council will potentially remain on the list of bodies in Schedule 7. If I have that wrong, I would be glad to be told. That links with my own frequently expressed concern about the Administrative Justice and Tribunals Council—in which I have declared an historical interest—which has been separated out and put down for the chop in Schedule 1. There is no intellectual coherence at all to the proposals. I would like to hear some coherence this afternoon.

I will make three other points. First, the noble Lord, Lord Hunt, asked some good questions. My answers might not necessarily be the same as his in all cases, but those questions need answering. Secondly, I share almost completely the doubts of the noble Lord, Lord Ramsbotham. We are getting rid of too much independent outside inspection or oversight of bodies and are being told, in effect, that the Ministry of Justice can take care of itself and does not want these bodies breathing down its neck. That does not correspond with my views about how government in this kind of society should work or how it works best. Thirdly, I echo the concerns expressed by other noble Lords about the way in which the proposals have been handled. I reiterate what I said at the beginning because, as a House, we need some reassurance that, frankly, the Government know what they are doing.

[Lord Mackay of Clashfern]

My Lords, we have to keep it in mind that, at this stage, the Bill seeks to confer powers and does not provide the final decision on any of these matters. I respectfully agree with my noble friend Lord Lester of Herne Hill that Amendment 175 needs to be taken into account in this connection. From the point of view of propriety in this House, one considers the Bill on the basis that Amendment 175 has been accepted. Therefore, from my point of view, we approach the Bill at this stage following a decision by this House that has accepted that amendment—an extremely important amendment—which very much restricts the powers that the Bill provides.

In connection with reviewing the work of these quangos, as they have been called, the position has to be that, if such a review is to take place on a fairly large scale, there is a need for an all-embracing Bill that provides the powers, with the detailed consideration following at a later stage of whether, and how, it is appropriate to exercise those powers in any particular case. For example, Schedule 1 provides a power to amalgamate or hand over a body’s power, principally to another body.

Parliamentary Voting System and Constituencies Bill

Lord Mackay of Clashfern Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord McNally]

I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us.

[Lord Mackay of Clashfern]

My Lords, it is worth noting that the clause referred to by the noble and learned Lord, Lord Falconer of Thoroton, is from the general statute dealing with referendums. This is not a question for just this referendum; it may be a question of whether what has already been put into the general procedure is sufficiently accurate. I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at.

[Lord Davies of Coity]

Perhaps I may ask a question. The Minister said that he would have to resist the amendment if it was pressed. Does he agree that that would not remove the problem and that the Government would still have to deal with it even if they won on a Division?

--- Later in debate ---

[Baroness Liddell of Coatdyke]

I am sorry to press the noble Lord further but I know of a scenario in 1979 where some business leaders became involved in the referendum campaign and put considerable sums of money towards it. I can see an actual situation emerging. I will not name the people here but I can think in my head who they would be and who would use it as an opportunity not to take a swipe at my party but to take a swipe at the noble Lord’s party. It is not clear in electoral law how those expenses will be allocated.

[Lord Mackay of Clashfern]

Before the noble Lord seeks to answer that question, this debate has got to a stage where people seem to have forgotten that a statute dealing with referenda was passed by the previous Administration. It deals with all of these questions in considerable detail. There are some additional questions because as time has gone on more difficulties have emerged—for example, in relation to the internet—but there are already considerable provisions in the law about that. It is important to remember that this debate should be about this particular Bill and its particular circumstances.

[Lord Howarth of Newport]

Do we not need to learn the lesson from, for example, the referendum on a regional assembly in the north-east, where the no campaign was led by business interests? That campaign was relatively well-funded and was clearly against Labour Party policy. In effect, therefore, it was significantly in the interests of the Conservative Party. Does the Minister feel that the lessons of that experience have been adequately absorbed and that the existing legislation to which the noble and learned Lord, Lord Mackay of Clashfern, referred satisfactorily covers such circumstances? Or does he feel that the legislation governing referendum expenses needs to be brought up to date in the light of that example of how money can be spent in a political cause but not overtly by a political party?