Crime and Courts Bill [HL]

Lord McNally Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I raised the issue of bailiffs at Second Reading. I followed it up with a Written Question which asked when the Government would respond to consultation. I was told, as I have reminded the House before, that it would be some time in the autumn. Autumn is now safely past us and we do not yet have a response. I spoke in Committee and subscribed to the amendment moved by the noble Baroness, Lady Meacher, on Report. I would have been very happy to subscribe to today’s amendment had it not been for the fact that there were already four signatures on it, which would have left me as a fifth wheel on the coach of the noble Baroness.

I strongly support her amendment because it is important to get some movement here. As my noble friend Lady Smith has pointed out, the Government have introduced three substantial new proposals to the Bill at a late stage. Two of them were at least subject to the recommitment procedure, and followed consultations—consultations, incidentally, which began after the consultation closed on the whole issue of bailiffs, on which the Government consulted last winter and spring. The third amendment, which deals with self-defence, was of course tabled two days before Report, with no apparent consultation with anybody at all beforehand.

I entirely subscribe to and share the views of noble Lords who believe that the Minister is absolutely genuine in his concern about this matter, but why has it taken his department so long to consult all relevant bodies? There was an extensive consultation period; seven months have now passed. What further consultations, if any, have taken place—that is a legitimate question to ask—and with what result? The Minister indicated, in answer to previous questions, that he hoped that there would be a response by the end of November. We are now past that date, and there is still nothing to be seen. As the noble Lord, Lord Kirkwood, has pointed out, time is not running out completely, but it is running out fast against a particular deadline.

Incidentally, I hope that the noble Lord, Lord Kirkwood, will consider another aspect of the coalition agreement, to which I have made previous reference during the passage of this Bill, namely the part of that agreement which indicated that the Government would introduce a threshold of £25,000, below which it would not be possible to obtain charging orders. On the first day back in January we will have in Grand Committee regulations prescribing a £1,000, instead of a £25,000, threshold. No doubt we will have an opportunity to debate that on a subsequent occasion.

In respect of this matter, the noble Baroness’s amendment is, as she put it, almost the least that could be done to get some progress quickly on this matter. If the Government do not accede to this request and if we are looking to another Bill to come forward—I do not know how many Ministry of Justice Bills we can expect to see in the next Session of Parliament—it clearly will take a long time. In the mean time, as other noble Lords have pointed out, there will be the potential for substantial suffering on the part of far too many people—not merely adults because children would be affected as well, including children in the most vulnerable and difficult of circumstances. It is simply unforgiveable that the department has let down the Minister, which is the fair way to put it, in progressing this matter. I hope that the noble Lord will feel able to accept the noble Baroness’s amendment. If not, I certainly shall advise my colleagues on these Benches to join her in the Lobby.

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

My Lords, perhaps it will at least allow the Whips to send out the necessary message that I can make no commitment to the noble Baroness beyond what I have said in meetings and at various stages of this Bill. I will briefly try to explain why not. I have listened to this debate and I have listened to the concern of the House. Yes, the House can send messages but, in truth, the matter is being dealt with. I note that my noble friend Lord Lucas said that the matter had been being discussed for the past 33 years and that the noble Baroness, Lady Meacher, referred to merely the past 20 years. Therefore, I am not too apologetic that the department is taking a little time to take this matter forward.

The consultation paper sets out the objectives, including providing more protection against aggressive bailiffs while spelling out the need for effective enforcement; a fair, transparent and sustainable costs regime that provides adequate remuneration; and minimising excessive regulation on business while ensuring effective protection for the vulnerable. That is the balance that we are trying to get right.

In previous stages of the Bill, I have outlined that the Government are clear that aggressive bailiff action is unacceptable. We remain committed to bringing forward reforms which will protect the public from this and ensure that enforcement action is proportionate. We have a firm commitment in the coalition agreement to effect this and we will not falter. The Government understand that bailiff action can be, by its nature, a deeply unpleasant experience for those in debt. We also understand how this can be exacerbated by unnecessarily aggressive and threatening behaviour by some bailiffs. Those who are subject to bailiff action are often the most vulnerable people in society, as has been repeated on a number of occasions in this debate. We will not stand by and allow them to be subject to needless bullying, which can have a very real and significant effect on their well-being.

However, as I have highlighted previously, the Government are looking to tackle problem bailiffs in a number of ways. These are set out in the wide package of proposals within our Transforming Bailiff Action consultation paper. This package of proposals will focus on the root causes of many complaints. Among other proposed reforms, it will improve clarity so that everyone knows where they stand by stipulating when and how a bailiff can enter a property, what they can take and, not least, what they can charge.

The noble Baroness’s amendment will not address these issues, nor will it supply debtors with an independent complaints process which will meet their needs. The Legal Services Act contemplates a service relationship between professionals, such as solicitors and their clients, which is not present between bailiffs and debtors. Under this amendment, debtors would not be able to complain to the Legal Ombudsman because the bailiff is not providing them with a service as required for complaints under the Act. It is therefore neither appropriate nor sensible to try to force the regulation of bailiffs into this framework which is not constructed to address the circumstances in question.

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[Lord Butler of Brockwell]

Yes, I remember those arguments well. The issue is to what extent the Government—the Executive—should have an interest in this matter. I think that the arrangements that were introduced protect the independence of the Supreme Court and the judiciary, and I would not want to change them.

[Lord McNally]

My Lords, I often think how well served we are by the depth and richness of the judicial talent that serves here in the House of Lords. I often think it, but perhaps not tonight.

This has been an interesting debate, full of mea culpas. The noble and learned Lord, Lord Lloyd, cannot quite remember how he let this through the committee on which he was serving; the noble and learned Lord, Lord Woolf, must have nodded when it went through; and the noble and learned Lord, Lord Goldsmith, said that the previous Government did not get it perfectly right. The fact is that this is an Act of Parliament carried by the previous Administration. I was very pleased to find out the intentions of the noble and learned Lord, Lord Falconer, at the last minute, although they did not really surprise me, but it seems strange that we should be discussing this.

Let me make my position perfectly clear. One of the things of which I am most proud in my parliamentary life is the steadfastness with which the Liberal Democrats delivered the votes in this House to carry through the reform that delivered us the Supreme Court. I have been a strong believer in the Supreme Court from that time—I think a little ahead of the noble and learned Lord, Lord Phillips, in devotion to the separation of powers—and that should stand in the record about my attitude to this amendment.

Of course it is possible for your Lordships to send strong messages to the other place. Let us remember that very shortly another place will be debating this Bill. However, I urge noble Lords to ponder whether it is the best way to send such a message. The Lord Chancellor can read, and I will make sure that part of his Christmas reading is the Hansard of this debate, but negotiations are going on. The noble Baroness, Lady Jay, asked whether the discussions have run into the ground. No, there has been discussion at official level in the two weeks since this issue was raised, and the letter that was quoted was from the Lord Chancellor to the noble and learned Lord, Lord Neuberger, pointing out that the Government are still considering this matter.

Let me clarify for the record that the Government do not have any concerns about the accountability of the UK Supreme Court. While there is no doubt that the Executive has a legitimate interest in the effective and efficient administration of all courts—a point that the noble Lord, Lord Butler, made very eloquently—the Government fully respect the independence of the judiciary and our duty to uphold that independence.

The amendment tabled reflects concerns about the present arrangements concerning the appointment of the chief executive, the staffing arrangements for the court and the ramifications of those arrangements for the independence of the court. This is a matter of great constitutional importance—a point made by the noble Lord, Lord Pannick. I emphasise that it is a matter of great constitutional importance, so when the noble Lord, Lord Beecham, with the impetuosity of a young solicitor says, “Why can’t this be handled?”, it is because it is a matter of great constitutional importance. It has been raised by a former president of the Supreme Court. It has been raised today by former high office holders—Attorneys-General, Lord Chief Justices and other Supreme Court justices. Nobody is underestimating its importance. However, I most humbly say—I am beginning to learn how lawyers manage to insult each other with the most exquisite politeness—that on a matter of this constitutional importance, where the Lord Chancellor of the day is saying that he is in negotiations and discussions with the president of the Supreme Court, it is not particularly helpful for this House to pass an amendment on the hoof in this way.

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[Lord McNally]

I do not wish to pre-empt or shorten the debate, but it might help if I were to say something here. I hope that my noble friend Lord Marks will withdraw Amendment 6 as it is overtaken by the subsequent amendment. I will respond first to my noble friend’s Amendment 7, which seeks to apply a tipping-point principle to appointments to the UK Supreme Court.

The Government’s position has always been that a tipping-point principle should apply to the Supreme Court and we believed, as he said, that the tipping point in Section 159 of the Equality Act 2010 already applied to such appointments. However, as my noble friend Lord Marks explained, there could be a contrary legal view and I can see that there may be merit in the argument that this matter should be put beyond doubt. Therefore, I am happy to say that my right honourable friend the Lord Chancellor is content for me to take this amendment away for consideration with a view to returning to the matter when the Bill goes to the other place.

Amendment 8 concerns whether the Lord Chancellor and Lord Chief Justice should be under a statutory duty to encourage judicial diversity. Following the debate on this issue on Report, I agreed to discuss the matter further with the Lord Chancellor and Lord Chief Justice in order to reflect the strength of feeling expressed by the House. Amendment 8 is in response to that further consideration.

There is much agreement in the House about the importance of a diverse judiciary that more closely reflects our society. There is also agreement that strong leadership is needed to bring about this change. Amendment 8 helps achieve that leadership by giving a clear declaration of the importance of the Lord Chancellor and the Lord Chief Justice promoting diversity. Therefore, as I explained, in view of the reasons and undertakings I have given, I hope that my noble friend Lord Marks will withdraw Amendment 6 and will not move Amendment 7. I commend to the House Amendment 8, relating to a diversity duty, and I thank the Constitution Committee and other noble Lords who made the case so strongly for an amendment of this sort. I emphasise again that I will take away Amendment 7 for suitable representation in the other place.

[Baroness Jay of Paddington]

My Lords, my name is not on this amendment but I have spoken several times on this subject during the course of the Bill. I welcome the Minister’s further discussions with the Lord Chancellor, and the government amendment. As he said, it reflects the Constitution Committee’s considerations of this matter which, as he mentioned in the discussion on a previous amendment, have been going on since the beginning of this year. I am delighted that he has taken the view that he has and that he is proposing Amendment 8.

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[Lord Beecham]

My Lords, the Opposition are delighted to join in this outbreak of consensus and congratulate the Minister on a very statesmanlike response.

[Lord McNally]

Given those interventions, I wish only to quote somebody who never made it to this House and say that this is not the end of the beginning. I knew that I would get that wrong, but noble Lords know what I mean—it is the end of the beginning. Of course, the person I am quoting rehearsed these things much more than I do. However, I hope that this is the start of a real drive for diversity. Those who have just contributed to the debate have played a major part in that. However, as we sometimes find in other debates in this House, there is battle still to be joined in this area.

[Lord Beecham]

Perhaps the Minister would care to fortify himself before these debates in the same way that Mr Churchill did.

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Moved by

[Lord McNally]

8: Schedule 13, page 218, line 24, at end insert—
“Encouraging diversity9A In Part 6 of the Constitutional Reform Act 2005 (other provisions relating to the judiciary) after section 137 insert—
“137A Encouragement of diversity
Each of the Lord Chancellor and the Lord Chief Justice of England and Wales must take such steps as that office-holder considers appropriate for the purpose of encouraging judicial diversity.””

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[Lord McNally]

My Lords, we are soon to be passing the three-hour limit for these debates at Third Reading. A reoccurring theme in all the debates on the Bill has been the straying into what I would describe as Second Reading speeches and an attempt to rerun cases that have been made. I respectfully say to the House that if this is going to be the norm, we may well have to talk to the Opposition about how we handle Third Readings. I am not talking about whose amendment it is, I am talking about the usual channels. If we continually have complete reruns of debates, it does make business management extremely difficult. Sometimes I think that noble Lords overemphasise winning votes in this House; making things happen. I actually think that what has the greater influence is the well argued debate rather than the vote, but perhaps that is because I am getting used to being beaten at this Dispatch Box.

We had an informed and extensive debate about female and young adult offenders on recommital and Report. I would also say that sometimes the speeches of the noble Lord, Lord Ramsbotham, make it sound as though nothing has happened in the past 17 years. Successive Governments have grappled with this, and certainly during my term of office I have fought very hard to put the specific problems of female prisoners to the forefront. I fully accept the points that were made by the noble Baroness, Lady Kennedy. I am disappointed that the noble Baroness, Lady Corston, thinks that nothing has been done with her report. We expect to publish in January, and I make no apologies for the delay; I would rather get something right than meet an artificial deadline. I hope that when we publish in the new year noble Lords will see the work that Helen Grant has been carrying out with the support of the Lord Chancellor. As I have said before, do not belittle the fact that a Conservative Lord Chancellor has openly said that he sees the necessity of giving priority to women prisoners, as he said today at Questions in the House of Commons. Hopefully in the new year we will put that strategy into place, and I am sure that we will have a good opportunity to debate that.

Equally with young adults, it is not a matter of carving out from one Government to another on this. I read the report that was published today about young people in care with a sense of collective shame at how these things are being dealt with. However, as those who have previously had those responsibilities know, it is often a matter of convincing colleagues in government, and finding resources when there is competition from other departments that have equally strong arguments. I do not think there is any doubt that we believe that the rehabilitation of both groups is important. We strongly agree with the arguments that have been employed, and that is why we are already investing significant effort and resource to ensure that female and young adult offenders receive the right support.

In the previous debate, I gave examples of the many projects, including those in Lancashire, Durham and Derbyshire, that trusts are running for female offenders. For young adults, likewise, many probation trusts are already coming up with innovative approaches to supporting this group. For example, in London the trust is working on an imaginative project by which some staff will work in both the youth offending team and the trust. This is to ensure that the transition between the youth and adult estate works effectively. In the east of England, probation staff have been developing closer links with leaving care services to ensure that the particular needs of these young adults are being met.

I hope, therefore, that noble Lords will recognise the Government’s strong commitment to providing the right support for women and young adult offenders. There is agreement across this House that we need to do so. What we are debating is the mechanism for delivering that support, not whether we should deliver it. It is important to be clear here that the projects I mention have not been centrally imposed. They have been delivered from the ground up, by committed and passionate staff in probation trusts, to respond to the needs of women and young adults in the area.

Local innovation is critical if we are to have effective services for these groups. I believe the system we already have strikes a good balance between local innovation and central support. I do not believe that a statutory duty is necessary to deliver this.

The relationship between NOMS and probation trusts already gives a framework that ensures these groups are prioritised. For example, trusts are already required by the NOMS Commissioning Intentions document to make appropriate provision for women in the community. Trusts are currently discussing their proposals for services for female offenders in 2013-14 with commissioning experts at NOMS, and will be challenged where these do not appear to be sufficiently robust.

Similarly, I have already mentioned on Report that the operating manual on unpaid work requires that women should be allocated to work placements which take account of their needs. This sets out a presumption that female offenders will not be required to work alongside male offenders.

On young adults, our current system balances local delivery with central support. As with female offenders, trusts are required by NOMS to commission or deliver an appropriate range of services to address the causes of young adults’ offending. To support this, NOMS has provided trusts with information on the specific needs of young adults that will help them and other providers take an evidence-based, effective approach to tackling re-offending. This system allows for local decision-making on how best to meet the needs of these groups.

In short, I wholeheartedly agree with the arguments that noble Lords have made about improving outcomes for female and young adult offenders. I hope that I have reassured noble Lords that NOMS and probation trusts are already taking a tailored approach to supporting them. However, our focus should be on supporting local areas to make further improvements. The system that we have already allows for this. Creating new statutory duties for trusts is not the right way to bring about the improvements that we want for these two groups.

In light of these assurances, I hope that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Ramsbotham, will agree not to press their amendments. Perhaps I may give just one little bit of encouragement to the noble and learned Lord, Lord Woolf. Yes, we did have lots of talks about restorative justice, and restorative justice is in this Bill, but getting it into the Bill took lots of talks between and within departments, letters to various Cabinet committees et cetera. Some of these things take time, but there should be no doubt that young offenders and women offenders are on the Government’s radar. Ministers at the MoJ, and particularly my colleague, Helen Grant, are working very hard to make progress in these areas. With those assurances, I hope that noble Lords will agree not to press their amendments.

[Lord Woolf]

My Lords, I thank those who have spoken in favour of the amendment and all those who have taken part in this debate, and I thank the Minister for his response. I hope that he will accept from me that I have no reservations in accepting that he sincerely believes what he has just said to the House.

However, there is a difference between the approach of the Minister and that which I was urging upon the House. I say that the situation with regard to women in the criminal justice system is one where there is a crying need for there to appear in the statute something which speaks of Parliament’s concern.

I have great sympathy for my noble friend Lady Corston in her feeling of frustration at a lack of action in respect of her report, which was welcomed so warmly. It seems to me that, in view of the issue between us and because the Minister has not sought to identify any possible prejudice that could come—

[Lord McNally]

I can only make one last appeal to the noble and learned Lord. Does he really think that it will advance one inch the cause that he espouses if we have a Division at this point, where people who have not been in the debate will come in and be told, “Oh, you’re voting in favour of women or voting against women.”?

[Noble Lords]

Shame!

[Lord McNally]

It is no use saying “shame”. There is no division between us, and to suggest that there is does not further the cause.

[Lord Woolf]

Well, of course, I listen very attentively to what the Minister says, but perhaps he will forgive me if I bring the agony to an end by indicating that, as I see it, there is nothing in the proposed provision which can harm the Government’s good intentions. I think that there is a difference of view here: between those who feel that the statute should contain a statement of recognition of the special position of women in the criminal justice system and those who do not. In those circumstances, I seek the opinion of the House in respect of my amendment.