EU Referendum and EU Reform (EUC Report)

Lord Maclennan of Rogart Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Maclennan of Rogart (LD)]

My Lords, this has been a very good, and timely, debate. I declare an interest, in that I am a beneficiary of the common agricultural policy. I would prefer to focus not on the short term, as I think most people have, but on the longer term.

We have lived in a peaceful Europe for more than 70 years. That is part of the outcome of bringing together the member countries in Europe into a community, and has been one of the most important aspects. In the 20th century, millions of people were killed because the European Union did not exist and member countries of Europe fell out with each other. That goes back a very long way. We have seen countries such as Germany and France, western European countries, falling out with each other over a long period of history. This has not been sufficiently focused on during the referendum campaign; the Prime Minister spoke of that on one occasion.

We should recognise this as a benefit of our membership. The economic benefits for this country are considerable—46% of our exports go to Europe; rather fewer of the exports from other European countries come to us—but a whole tendency towards disintegration could be started by Britain. That is a great risk that we take. The Union is to some extent not as close as it was, and some Nordic countries might consider following our lead if we go for Brexit. We have also noticed in eastern Europe the coming together of member countries. Hungary has a very poor Government at the moment, but it is none the less a beneficiary of the European Union and I think that it wants to stay a member of it. Let us consider what the greater impact might be of our withdrawal from the Union. I fear that it could be the stimulus to the Union falling apart.

The connections we have made are very important. I served on the Convention on the Future of Europe in 2002-03. That seems to me a more favourable circumstance in which to negotiate agreements. On that occasion, the members of the European Union found it possible to reach consensus. Afterwards, France and the Netherlands rejected the outcome in referenda, but they did so not on the substance of the agreements—which they finally came to accept—but because they wanted to vote against their Governments, and the Governments of both came to grief shortly thereafter.

We need unanimity about the objectives of the Union and should recognise that we can lead in this negotiation and this debate. We should help in that. “Lead not leave” is the message I want to put across.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Maclennan of Rogart Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Maclennan of Rogart (LD)]

My Lords, referenda are unpredictable and this one is very unpredictable. In the period after the Convention on the Future of Europe, France and the Netherlands voted against the recommendations made by that convention, on which I served. It was pretty clear that the votes were not against the substance of the convention but against the Governments in office in those two countries. Both countries very speedily came round to acceptance of what the convention had done. We were rather delaying in this but we have seen it implemented in the Maastricht and Lisbon treaties.

Personally, I would be opposed to a convention which could result in a real disaster for Britain. The disaster would be if we took ourselves out of the international, global debate and felt that we had to bend our knee to the European Union, which in my view would not necessarily be at all responsive to our begging to have access to the free trade area. I believe we ought to have a system that enables the European Union to continue its discussion about reform, perhaps along the lines of the convention of which the noble Lord, Lord Kerr of Kinlochard, was the secretary-general, to enable the public to be more aware of what is going on in the European Union. Unfortunately, the press, and to some extent the media, are not conveying the positives about the European Union. They seem to focus only on the adverse features and nations quarrelling with nations.

If we leave the European Union, we might have to follow Norway or Switzerland but I cannot believe we would find that route at all appealing. Norway and Switzerland pay into the amounts that are distributed by the Union. They have to accept what is laid down in European legislation and they do not have any voice in the discussions. If that were to happen to us, it would be a disaster.

We have to pool our sovereignty in many respects. We pool our sovereignty in global organisations such as the World Trade Organization, the International Monetary Fund and the UN Security Council, but I do not believe that what we are engaged in in the European Union is necessarily pooling our sovereignty. We have a right to stand up against European legislation and we do from time to time, and we do it effectively. If we were to focus on expanding the trade within the European Union into services and digital, we would see a more positive outcome of these current debates.

The Union is in some difficulties at the moment in the eurozone but we are not part of the eurozone and we can help in ways that I think would be understood. We are capable of coming to terms with other countries but it is far easier to build up our trade relations with those countries, particularly big countries such as China and Japan, if we go into international agreements with the European Union and pool our resources. There are 500 million people in the European Union and we have considerable authority and respect as part of that. I hope that it will not be thrown away on 23 June.

Age of Criminal Responsibility Bill [HL]

Lord Maclennan of Rogart Excerpts

Friday 29th January 2016 Lords Chamber

[Lord Maclennan of Rogart (LD)]

My Lords, the country should be very grateful to my noble friend Lord Dholakia for pursuing this question of the minimum age of criminal responsibility. I agree with the noble Lord, Lord Cormack, that this is a civilised country, but we are exceptional in our treatment of young people in respect of their criminal propensities. The circumstances in other European countries that have raised the minimum age of criminal responsibility are not necessarily different from ours. Belgium, Luxembourg, Lithuania and other countries have decided that the minimum age should be much higher than it is in this country.

We are also offending against the recommendation in the UN Convention on the Rights of the Child in making it clear that we are not prepared to accept raising the minimum age to 12, which has been supported by most countries.

The debate so far has been extremely effective. My noble friend Lord McNally, who is in charge of youth justice, made a very powerful speech. He spoke for himself and I hope he will be listened to by the Government. The noble Lord, Lord Faulks, who is answering the debate, has had his ear bent by the noble Lord, Lord Cormack, who suggested that he should be talking with our new and rather enlightened Secretary of State, who has made some significant changes in the nature of the laws we advocate in this country. I was a great admirer of Lord Bingham—Tom Bingham—who was a year ahead of me at college. His book, The Rule of Law, is one of the most heavyweight arguments about what we ought to be thinking about in this country. On equality, he said:

“Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society … But we would also accept that some categories of people should be treated differently because their position is in some important respect different. Children are the most obvious example. Children are, by definition, less mature than a normal adult, and should not therefore be treated as a normal adult would expect to be treated. Thus they are not liable to be prosecuted for crime below a certain age (in Britain it is conclusively presumed that no child under the age of ten can be guilty of any offence, a younger age than in most comparable European countries); if convicted of crime, they should not be punished as a normal adult would be punished”.

That is a very wise statement.

The noble Earl, Lord Listowel, expressed in powerful terms how young people should be treated; how, if they are guilty of offences, they should not necessarily be dragged before a court and how doing so might make them reoffenders. That is too common in this country and we need to root it out. The whole purpose of our response to offences should be to root out the propensity to reoffend and to inspire people to live lives in concordance with the law.

My noble friend Lord Dholakia is introducing this measure at a very suitable time and I hope it will be recognised that the movement to raise the minimum age of criminal responsibility should not necessarily stop at 12 but should go beyond. As the UN has stated that 12 is internationally acceptable, that would be a very good move in the right direction but let us not end the argument there.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Maclennan of Rogart Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Maclennan of Rogart (LD)]

My Lords, I congratulate the noble Baroness, Lady Cox, on bringing forward this timely Bill. The growth of abuse has been considerable in the past decade. The noble Baroness has given good examples of the abuses, and they need not be repeated. The suffering of women oppressed by religiously sanctioned gender discrimination must be addressed as part of our protection of human rights. The emergence of a parallel legal system which undermines the fundamental principle of one law for all must also be recognised. There is an urgent need to take these issues seriously and adopt appropriate measures to help women suffering in ways which are completely unacceptable in Britain.

In the United Kingdom, there has been considerable growth in sharia forums—I believe there are 85—and sharia arbitration councils which discriminate against women. Section 1 amends the Equality Act 2010 to put this right. Subsection (4) seeks to protect those who marry according to certain religious practices but not according to the civil law. The need to make this remedy open and clear is very strong. Many of those who are subjected to improper practices are not aware of their rights. Those who are in polygamous marriages need to be protected because they can be impoverished if their husbands simply divorce them by repeating three times that they are divorced.

The amendments to the Arbitration Act 1996 to preclude discrimination against females are also very important. They exclude an imbalance of evidence between men and women. Sharia law sees that as acceptable, but it is not acceptable in accordance with the laws of this country. Property distribution between sexes in cases of intestacy is also covered by the Bill. The amendment to the Family Law Act 1996 which is proposed gives power to courts to set aside mediation agreements if they decide that one party’s consent was not genuine. That enables the police to investigate the circumstances. If this Bill is enacted, it will become an offence falsely to claim to have legal jurisdiction or the power to arbitrate without any basis under the Arbitration Act 1996. That seems very necessary.

The Bill seeks to ensure equality before the law and stop the coercion of women in this country. It will help women to know their legal rights and clarifies that discrimination law applies to arbitration. This Bill needs to be enacted to prevent the operation of a parallel legal system. Provided that faith groups operate within the civil law, they will be free to resolve their disputes within the framework of religion. That has been made clear by the noble Baroness, Lady Cox. The Bill is very worth while and needs to be enacted.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Maclennan of Rogart Excerpts

Wednesday 7th May 2014 Lords Chamber

[Lord Faulks]

I will endeavour to answer my noble friend’s question when I come to deal with the discretion.

We do not expect that these regulations will result in providers leaving the market—one point that was made—or that there will be an insufficient number of providers remaining. We do of course expect some providers to take on fewer judicial review cases. Indeed, it is the purpose of the policy to provide a disincentive to providers taking on unmeritorious cases and thus to ensure that limited public funding is targeted at the cases that justify it. While I wholly agree with my noble friend Lord Cormack about the importance of the rule of law and the appropriate endorsement of Lord Bingham’s book, he seemed anxious to encourage any sort of case on the basis that some case might emerge from the morass of unmeritorious cases. We are keen to reduce the size of the trolley of the noble Lord, Lord Carlile, so that those who are contemplating bringing judicial review proceedings think long and hard before going on to make these applications.

The Government firmly reject the accusation that these regulations will undermine access to justice. There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious. A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused. There has been little about interim relief, but I have made it clear to the House that these will not be caught by the restriction on legal aid that these regulations involve.

I now respond to the argument that further guidance should be issued on the Legal Aid Agency’s discretion. During the consultation process, the proposal was criticised for prescribing too rigid a list of criteria that the agency would consider. The Government responded by modifying the criteria and making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.

That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision. No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation. This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances. The consultation response sets out in further detail how the LAA will apply the factors that we have set out and we do not consider that additional guidance could add anything further to this.

As noble Lords will be aware, the House of Lords Secondary Legislation Scrutiny Committee issued a report criticising the regulations, which has been much referenced. We have responded to the report and a copy of the letter has been placed in the House Library. I hope that noble Lords have had an opportunity to see it. The Government will also respond to the report of the Joint Committee on Human Rights in due course. Many of the questions posed in that report were repeated by the noble Lord, Lord Beecham. We will respond in detail to that report and most of the questions that he posed will be answered. We will, of course, keep the operation of these regulations under review as part of the planned post-implementation review of the totality of changes brought in by the LASPO Act, due to take place in the next two to four years.

I acknowledge that the Government have made a number of significant changes to the civil legal aid system since we came to power. The underlying rationale for all these, including the regulations that we are debating tonight, has been to bear down on the cost of legal aid. That is necessary in the current financial climate, which was acknowledged, despite severe misgivings about these regulations, by the noble and learned Baroness, Lady Butler-Sloss. We need to ensure public confidence in the legal system by targeting limited legal aid resources at the people and cases where funding is most needed. These are the aims that I believe the public firmly support.

There has been a great deal of criticism of my right honourable friend the Lord Chancellor and his role. I do not think it is appropriate for me to go into the detail of the attacks that have been made on him. I am sure that noble Lords are sufficiently generously spirited to perhaps construe his referring to left-wing causes as a bit of hyperbole on his part. It matters not, of course, whether the applicant is left wing, right wing or has no political view at all. The question is whether the case is meritorious and whether it should be supported by what are sparse legal aid funds. It is important that the limited availability of legal aid should be targeted appropriately. What this regulation does is not to abolish judicial review, but to limit—in very specific circumstances—the recoverability of legal aid, once the information is available, and subject to the discretion which I have attempted to describe. We may have further arguments, I suspect, when the Bill referred to by the noble Lord, Lord Pannick—the Criminal Justice and Courts Bill—comes before your Lordships’ House. That Bill has various other provisions which do, to some extent, restrict the scope of judicial review, but certainly do not abolish it.

I will, of course, take back the comments made by noble Lords from all round the House to my right honourable friend the Secretary of State and Lord Chancellor, and will convey the anxiety expressed about this erosion, as it characterised, of a constitutional principle. I ask noble Lords to look at the reality of what these regulations propose and not to be too exercised by what has been, I think, somewhat exaggerated in terms of their effect in restricting judicial review. I respect the rule of law, as I hope noble Lords will accept. I accept the value of judicial review and I would not wish to be part of any Government who abolished judicial review. It remains an important constitutional provision begun, as my noble friend Lord Lester described, in the 1970s and developed since, but it is not an illegitimate aim to look at where resources can be properly targeted and to make appropriate adjustments to make sure that only cases which are really worth the public’s expenditure are reaching the court.

My noble friend has expressed his regrets, with his characteristic economy of words. I hope his regrets have been somewhat mollified by this response.

[Lord Maclennan of Rogart (LD)]

My Lords, before the Minister sits down, would he give some consideration to the unanimity of the view which has been expressed in this House—which I have audited—that this measure is a constitutional monstrosity? Would he consider, and represent to his departmental colleagues, the possibility that Parliament may come to grips with these issues and take the decision? This is one which, because of its constitutional extent, should be decided not by a Minister but by a Minister in Parliament.

[Lord Faulks]

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.

British Bill of Rights

Lord Maclennan of Rogart Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I am the first non-practising lawyer to contribute to this debate, but it is the case that I had an oversight of some of the legislation, notably that of 1998, which was the third stage in the development of international protection of human rights. The first was the ratification of the convention in 1953; the second was giving the right of petition to individual citizens in 1966, in this country; and the third was the so-called incorporation of the convention.

I am bound to say that I have been disturbed by the attitudes expressed by a number of Conservative Members of both Houses about the underpinning of human rights. It seems to me that the division of opinion was reflected in the commission itself, and I understand clearly why the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands were reluctant to advocate any change in the status quo at this time. There are good reasons for considering whether the scope of domestic protection of human rights should be enlarged. However, I would think that it could not be done entirely on the basis of the commission’s report.

My noble friend Lord Lester of Herne Hill deserves laurels from the nation not only for his participation in the work of this commission but for the strong defence that he has made over the years of the enlargement of the practical protection of human rights. I am very grateful to him for opening the debate as he did.

Many aspects of our constitution are developing gradually, but without necessary regard to their impact on other aspects. At this time, not least because of the Scottish dimension and the definite possibility of a referendum on independence, we will have some difficulty in considering this in isolation from these other constitutional considerations. I would hope, however, that in pursuance of one of the recommendations of the commission, namely that of making the public more widely aware of the importance of the protection of human rights—of what the Human Rights Act does and where it is, perhaps, limited—we could establish some kind of convention, not just on the protection of human rights, but more widely. Speaking as a Scot, I do not think that the people of Scotland should think that their choice is between independence and the status quo; there should be a possibility of development towards a more federal system of government internally in this United Kingdom. If that proposal were to be taken up by the Government, I hope that it would be considered with great care—and it has been considered by the Graham Allen-chaired committee in the House of Commons. There would be an opportunity to involve not just interest groups or politicians but individual citizens and to spread a greater understanding of the importance of the protection of human rights. One possibility is that we might seek to extend effective protection by taking account of other conventions to which we have signed up but not necessarily given effect, such as the UN Convention on the Rights of the Child.

I believe that we have in the past been an exemplar of the protection of human rights, and that should remain our goal. I agree very much with the noble and learned Lord, Lord Goldsmith, in his strictures about opting out of the work and jurisdiction of the European Court of Human Rights, for the reasons that he gave. At this perilously fragile time within the European Union—but not only within the European Union—there would be a great danger in our giving an example of withdrawing from the broadly expressed rubrics of the convention on human rights.

One issue that has emerged in this debate is around the language of the protection of human rights, which has always been cast in very broad and general terms. If you go back to the Bill of Rights of 1689, you will find similarly broad expressions. I do not think that it would be at all sensible to narrow the effectiveness of those broad rights by having greater definition; certainly there could be extension, but not tighter definition. That is why the judges should have a balancing role in our constitution. I am very unhappy about the principle of sovereignty of Parliament, if it is judged as being something capable of being used to produce results contrary to the history of our country and values that we have, over many centuries, embraced and become more particular about. Consequently, I take the view that the position of judges in this country is important.

I note what has been said, and clearly action needs to be taken. I hope that the Minister may be in a position to give us some indication of what action can be taken to strengthen the European Court of Human Rights, in the light of the backlog of cases and the cost of sweeping up this backlog, and whether he believes that the Brighton declaration might lead to greater international harmony on reaching agreement about the appointment of judges and so forth.

Nevertheless, the system as it is is so much better than it was, and I very much hope that we take our time to consider how to enlarge this and to involve the public and the constituent nations of the United Kingdom. Northern Ireland is a special case because it has been given some indication that we might be ready to do something about its protection of human rights. Scotland and Wales are in a fragile—or, at least, indecisive—position at the moment. The coalition Government should therefore not seek to come to a quick conclusion about how we are going ahead, but the direction seems to be clear. We need a Bill of Rights against which we can judge the appropriateness of executive action and, indeed, the conformity of legislation with the fundamental values that we, as a nation, have embraced and wish to continue to embrace.

Criminal Procedure Policy: EUC Report

Lord Maclennan of Rogart Excerpts

Monday 4th February 2013 Grand Committee

[Lord Maclennan of Rogart]

My Lords, it was a privilege to serve on the committee under the chairmanship of my noble friend Lord Bowness. His approach was careful, balanced and forward-looking. We heard from a wide range of witnesses, who gave not always complementary recommendations, but, under his chairmanship, the committee has distilled an approach to criminal procedure which not only ought in itself to be endorsed but is a model as to how we should approach changes in the law in the European Union—balanced, careful, studying it case by case. That has been cited by the Government as being their approach to criminal procedure, based on the coalition agreement.

It is not appropriate to have European Union-wide harmonised criminal procedural law. Our traditions are extraordinarily different, and it could create structural confusion and embarrassment if we were to attempt to move in that direction too quickly or other than step by step. It is clear that even within the United Kingdom, the criminal procedure laws are to some extent different. As our chairman pointed out, the noble and learned Lord, Lord Boyd of Duncansby, was helpful in drawing attention to some of those differences. It is certainly right that we should ensure that the European Union provides minimum rights for defendants and victims travelling or located in other countries. That is a common phenomenon because of greater mobility—perhaps too common. I read in the press the other day that London is the seventh largest French city. A very large number of British citizens live and, in many cases, work, not only in Spain, as is well known, but in France and a number of other countries.

Travellers who are unfortunately involved in criminal procedures need to be considered very carefully. They should enjoy the possibility of comprehending what is being done in court, so translation, interpretation and explanation of their rights on arrest clearly ought to be observed.

My noble friend Lord Bowness has carefully expanded the committee’s recommendations, and I suppose that there is some risk of my merely repeating what he said because I so fully agreed with the committee’s recommendations. In particular, he spoke about mutual recognition. It is important to build trust throughout the European Union through mutual recognition of decisions and judgments made in other member states, against the background provision for minimum standards in other European Union member states. The case-by-case approach of the coalition Government is certainly right. We must recognise the different individual criminal justice systems.

To my mind, it was right that the United Kingdom did not opt into the proposed directive providing for access to a lawyer at an early stage of a criminal investigation. We took a lot of evidence on this point, and it was made abundantly clear that investigations into criminal offences would not necessarily be successful if lawyers were provided in this country. I agree with the conclusion that the committee drew; it would be too disruptive and would defeat the purposes of the criminal law in our country.

We also emphasised the commitment to considering the compliance of the proposed European Union legislation with the principle of subsidiarity. That has been the hallmark of the European Union Select Committee and its sub-committees. It is exceedingly important, as we move step by step in these areas to remove injustices and to ensure that human rights are observed, to reflect on whether the particular proposals are adding value and whether European legislation would add value in those respects. The European legislation can do that where it is evident that minimum standards conformable with fundamental rights need to be provided.

European Union legislation can undoubtedly add value to our own legislation by providing greater specificity than is provided by the European Convention on Human Rights and by the general application of those principles. It also enables affected individuals to test what is being done in the national courts, and that enhances the speed with which these matters can be determined and the certainty of the outcome.

I am glad that the Government are investigating, with other European Union member states, ways in which we could collectively ensure that the general rubrics of the European Convention on Human Rights are observed in investigating and prosecuting crime. That is permitted explicitly in our protocol on the Treaty on the Functioning of the European Union, allowing us to opt into such proposals. That seems to be the proper approach that we should be taking, on a wider canvas, to the criminal justice system.

Although I wholly understood why my noble friend Lord Bowness was careful in his opening remarks not to prejudge the outcome of the consideration being given by his committee, and another sub-committee of the European Union Select Committee, to the pre-Lisbon justice and home affairs legislation, it is perhaps worth pointing out that when we considered the issue as an adjunct to the central questions that the committee was considering, we stated in paragraph 115 of our report that opting out of the pre-Lisbon treaty justice and home affairs legislation would have significant repercussions on United Kingdom criminal enforcement:

“We share the scepticism that it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.

That debate will have to be considered at greater length and in the context of the Government’s determinations, but it is right to recognise that the membership of this committee and the Select Committee took our preliminary view, which suggests that the proposal to opt out would go far too far to secure justice in this country.

Political Party Funding

Lord Maclennan of Rogart Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord McNally]

My Lords, I welcome those suggestions from my noble friend, which I will pass on to the Deputy Prime Minister. In his Statement that I referred to, he said:

“The Government believe that the case cannot be made for greater state funding of political parties at a time when budgets are being squeezed and economic recovery remains the highest priority. But there is a case for looking carefully at whether existing levels of support could be used more effectively”.—[Official Report, Commons, 23/11/11; col. 25WS.]

I would have thought that some of the suggestions that my noble friend made could be brought into that general consultation with all political parties.

[Lord Maclennan of Rogart]

My Lords, will my noble friend indicate whether the advice that has been given will be followed in time to influence elections that are going to be pending quite soon? In particular, having borne in mind that the Government have been speedy in altering the structure of constituencies, will they also take into account the importance of fair dos in spending to affect these forthcoming elections?

[Lord McNally]

My Lords, even this report recommends that nothing that it suggests should come in before 2015, but the Deputy Prime Minister has indicated that all political parties are welcome to have broad discussions with him, and these matters could form part of those discussions.

Public Bodies Bill [HL]

Lord Maclennan of Rogart Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I join my noble friend in expressing appreciation of the way in which our colleague and noble friend Lord Taylor of Holbeach handled this Bill at an earlier stage. His careful consideration of the points that this House was making has considerably enhanced its quality. I do not dissent from the view that the Bill was ill-considered when it first reached us. Indeed, it is an exemplification of the point made by a number of committees of this House on the necessity for pre-legislative scrutiny in matters of such importance.

A change that is particularly welcome is the nature of the scrutiny of the orders that will be brought forward in secondary legislation in consequence of the Bill. I am happy to see that that has remained, enabling further consideration to be given to some of the particular proposals. I am also glad that the Government have given further thought to the future of S4C and have included in the Bill a duty requiring the Secretary of State to ensure that sufficient funding is available. There was widespread concern in Wales that the original proposal would result in a serious contraction of Welsh language broadcasting. It is to be hoped that this change, which I gather has been welcomed all round, will remove that anxiety.

The RDAs were a particularly remarkable happening which, like the changes, were introduced even before the legislation was before the House. It is too late to cry over that spilt milk, but it may be said that the work done by the RDAs, including scrutiny of the European Union regional development funding and where it should be directed, must be done with effectiveness. I hope that the new arrangements for that will be reported with openness and frequency to enable Parliament to consider how successful those changes have been. On the face of it, they were rather remarkable changes to have been made without much prior consultation. What happens to European funding in particular is not a matter that is considered only by us, but will be considered by European Union institutions to see whether the money has been properly spent.

This House has proved its effectiveness and capability, its broadness of vision and its particular knowledge in preparing to tackle some of the outstanding problems that the Bill generated. I cannot think of legislation that has been given more careful or extensive attention that the one before us today. That it was worth while is manifested by the amendments that my noble friend has announced, and which were broadly approved in another place, and which by and large—indeed, almost universally—are to be welcomed. I hope, however, that such legislation will never be introduced again so soon after a general election, bouncing Parliament into decisions of such fundamental importance over such a broad spectrum of our national life.

[Lord Thomas of Gresford]

My Lords, I would like to underline what my noble friend has said about Sianel Pedwar Cymru. It has caused considerable delight in Wales that the Welsh authority will now have the funding from the Government without compromising the status and editorial independence of the channel, which gives so much entertainment in Wales.

--- Later in debate ---

[Lord McNally]

Absolutely not. I have heard Ministers make such speeches in this House but I will take advice from the Clerks. I am very willing to sit down and to listen to all the debate but the idea was to make it clear where we were coming from. As is shown by the Marshalled List, the Government do not intend to accept any of the amendments tabled by my noble friend Lord Newton. That is abundantly clear. Whether the noble Lord wants to hear that at the end of the debate or now is a matter of choice but I will look to the Clerk for guidance.

I understand that if I want to speak early for the assistance of the House, it is fine. I hope that the noble Lord, Lord Borrie, will accept that and that we can go on. I do not see where it disrupts the debate and I look forward to his contribution, as I always do.

As I say, the abolition of the AJTC will have no direct impact on judicial independence or judicial decision-making. I want to make it clear that the AJTC is not a tribunal or any other form of judicial body. While it has observing rights, it is not an inspectorate and does not have the range of monitoring and reporting powers that an inspectorate would expect to have. The AJTC was set up to advise the Lord Chancellor, Ministers of the devolved Administrations in Scotland and Wales and the Senior President of Tribunals on administrative justice. One of the council’s functions is to keep under review the constitution and working of tribunals. However, we have moved on from a structure in which tribunals were funded by the department whose decisions they reviewed. We now have the unified Her Majesty’s Courts and Tribunals Service supporting the majority of central government tribunals and ensuring that tribunal users have access to timely and effective justice. Previously disparate management, procedures, appeals and funding mechanisms are now administered centrally by the Ministry of Justice. There are also a number of ways by which ministerial accountability is assured for the performance of Her Majesty’s Courts and Tribunals Service, further reducing the need for the kind of oversight that the AJTC provides.

The Ministry of Justice is committed to maintaining and developing its overview of the end-to-end administrative justice system. It is working with other departments and the devolved Administrations in Scotland and Wales to ensure that there continues to be a UK-wide overview of administrative justice. It also has close links with the Cabinet Office, which leads on ombudsman policy.

Much is made of the AJTC’s ability to offer independent advice and I understand the principle; it is an important one. However, independence must be weighed against the effectiveness of such bodies if being so far removed from the centre means that they lack the ability to influence and drive change. I urge this House to view the Government’s proposals for administrative justice policy in this light.

It is my belief that officials are well placed to provide Ministers with objective, expert and impartial policy advice on administrative justice matters. That is what officials do in every other justice policy area. Officials have forged links with stakeholders in the administrative justice field that will enhance their role and capability. Indeed, the department intends to establish a group of administrative justice experts and key stakeholders, particularly those who represent the views of users. In practice, that will likely include those who practise or have practised in relevant fields. Such a group will provide a valuable forum for sharing information and best practice and will be used to test policy ideas and, initially, to help prioritise the administrative justice work programme.

[Lord Maclennan of Rogart]

In the light of the concerns that have been forcefully expressed on a number of occasions in this House, will my noble friend consider whether the new arrangements could be made rather more transparent than has been the case in respect of some ministries in revealing what the consequences of these inquiries are? Perhaps an annual report could be produced for a number of years so that we can judge how effective the proposed changes are in the event.

[Lord McNally]

I am happy to take that suggestion back. It sounds a reasonable idea although I do not know what the cost would be. All I can promise my noble friend is that I will take it back and let him know, via a letter that I can put in the Library of the House, what the reaction is to that. The AJTC’s budget for the 2010-11 financial year was £1.3 million, compared with the Civil Justice Council’s budget of a relatively modest £312,000. That reflects the fact that AJTC members are paid while CJC members are not.

So it is for reasons of efficiency, economy and effectiveness that the Government are not seeking to modify any of these proposals. There is no other public body that could easily take on the functions of the CJC, which is why we retain it. However, I insist that the reasons for abolishing the AJTC are as sound now as they were when this House took that decision some months ago. Although I am grateful to my noble friend Lord Newton for offering us the wriggle room, it is not wriggle room that the Lord Chancellor wishes to take advantage of. He wishes for this House to confirm the decision that it initially took and proceed as soon as possible with the abolition of the AJTC. I hope that is of help to noble Lords in the contributions that they want to make to this debate.

Freedom of Information (Designation as Public Authorities) Order 2011

Lord Maclennan of Rogart Excerpts

Monday 17th October 2011 Grand Committee

[Lord Maclennan of Rogart]

The order before us is welcome, in general terms. As the extension of the operation of the Freedom of Information Act to the three bodies concerned was first raised as long ago as 2007, there has been plenty of time for grave, or even limited, concerns to be raised about the matter. There are, consequently, only some quite small matters that spring to my mind as being worthy of inquiry. These arise not so much from the propositions themselves as from the impact assessment, which was published in June of this year, and the very helpful Explanatory Memorandum.

This memorandum describes ACPO as being a professional body, not a staff association. I find that concept a little hard to come to terms with because there seem to be occasions when ACPO does, to some extent, consider matters that are peculiar to the police and may not have a direct public impact. I am thinking, for example, of whether it would be desirable for their reactions to a proposed restructuring of the police to be identified as the views of individuals participating in a debate on the subject. It is clear that the views of ACPO as a whole on such a restructuring should be engaged, but it cannot be entirely desirable for the way that debate took place to be made public. I know that individual members of ACPO are already subject to inquiry under the Freedom of Information Act, so perhaps I am splitting hairs. However, there must be matters that it is appropriate for professional associations not to disclose because they apply to them and not necessarily to the public.

The more important issue arises from the indication that the Government are continuing the process of scrutiny of the consequences of the Freedom of Information Act, although this may be just a failure of understanding on my part. The Explanatory Memorandum that we have been given indicates that that is an ongoing process, but that the results might be known by the end of this month. That is referred to in paragraph 12, “Monitoring & review”. It states that any changes to be made to the FOI Act as a whole will be contained in a memorandum to be submitted to the Justice Committee later this calendar year. How extensive and deep will the inquiry be? Are all the departments and all the many bodies covered being asked to make a submission? That must create a very considerable body of work.

That should be viewed in conjunction with what was stated in the impact assessment of the policy review; namely, that there will be no arrangements in place that will allow a systematic collection of monitoring information for future policy review. To invite all the bodies covered by FOI to make submissions once as a kind of big research exercise is perfectly sensible and reasonable, and was envisaged when the Act was brought forward. However, if we are to maintain proper parliamentary oversight of the effectiveness of this scrutiny, this openness and the purposes of the Act, it would make sense if problems that arose in the administration of the Act were noted and tabulated so that it was relatively easy for the bodies, where there is a conflict, to produce that information without going into the difficult process of historical digging, which would take far longer and require more public funding. I rather question the wisdom of not having a systematic collection of monitoring information for future policy reviews if that is the case.

Apart from that relatively minor matter, I endorse the intentions of the Government and am glad that these provisions have been brought forward.

[Lord Bach]

My Lords, I thank the Minister for introducing the order so clearly and other noble Lords who have asked questions of some importance, particularly the final question, which the noble Lord, Lord Maclennan, majored on, which was around the Government’s plans for reviewing the Freedom of Information Act.

I know that the Minister is giving what they nowadays describe as a keynote address this Thursday at the Westminster Legal Policy Forum on the very topical subject of:

“The future of Freedom of Information—challenges for expansion”.

I, alas, cannot be present because of duties in the House. If this sounds like an advertisement to go and hear the noble Lord, that is exactly what it is. However, I hope that he may be able to say something both this afternoon, in response to his noble friend Lord Maclennan, and on Thursday, because I know that he has particular duties in ministerial terms as far as this Act is concerned. I hope that he can perhaps unveil slightly today what he may say to his other audience on Thursday.

We support the order. The Freedom of Information Act was one of the substantial achievements of the previous Government. It will be long-standing and of substantial value to our freedoms. It does not always seem that way if you are sitting in a ministerial chair or even in a senior civil servant’s chair. It can be awkward, difficult and seem sometimes almost impossible, but that is precisely why it is in existence. So we support both the Act and this minor order—minor not for the three bodies involved but in the great scheme of things. It was in March 2010, as paragraph 8.4 of the Explanatory Memorandum tells us, that the decision to bring these bodies within the Act under Section 5 was made and communicated to each body. We are delighted to see the order before the Committee today.

My only question to the Minister is one that I mentioned to him briefly earlier. We read in paragraph 8.4 that two of the bodies “welcomed publicly” the fact that an order such as this one was to be made, bringing them within the scope of the Act. It does not say anything about the response of the third body, UCAS. Can the Minister help the Committee with how UCAS responded?

As I said at the start of my few remarks, we support what the Government are doing on this occasion.