EU: Police and Criminal Justice Measures
Lord McNally Excerpts(10 years, 11 months ago)
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Lord McNally
That this House considers that the United Kingdom should opt out of all European Union police and criminal justice measures adopted before December 2009 and should seek to rejoin measures where it is in the national interest to do so; endorses the Government’s proposals in Cm 8671; and invites the European Union Committee to report to the House on the matter before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States prior to the Government’s formal application to rejoin measures in accordance with Article 10(5) of Protocol 36 to the Treaty on the functioning of the European Union. 13th Report of the European Union Committee, Session 2012-13 (HL Paper 159).
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, today this House has the opportunity to debate and vote upon the Government’s proposal to: opt out of all pre-Lisbon police and criminal justice measures; invite various parliamentary committees to issue reports on the list of measures applicable; and then begin formal discussions with the European Commission and the other member states.
It would perhaps help our deliberations if I begin the debate by providing a little context. Between 1995 and 30 November 2009, some 130 measures in the field of police and criminal justice measures were adopted in Brussels under the so-called third pillar. These were not subject to either Commission enforcement powers or the full jurisdiction of the European Court of Justice. As a result, the Commission could not take action where it considered measures had not been properly implemented. There were no ECJ infringement rulings and unanimity was required to pass decisions in Council. The Lisbon treaty changed the constitutional structure of the European Union in police and criminal justice matters. A five-year transitional period was negotiated to delay these pre-Lisbon measures from becoming subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. This transitional period applies to and will end for all member states on 1 December 2014.
However, the previous Labour Government negotiated a provision that applies only to the United Kingdom. Under the terms of the Lisbon treaty, the United Kingdom has until 31 May 2014 to decide whether to opt out of around 130 justice and home affairs measures covered by the treaty. If the UK so chooses, the opt-out will come into effect on 1 December 2014. An opt-out of individual measures may have been preferable—I believe that was what the previous Government initially tried to negotiate—but that is not an option. The opt-out can be exercised only en masse. Only after we have opted out can we seek to rejoin individual measures. That is subject to a negotiation with the European Commission and other member states.
Two weeks ago, I repeated in this House a Statement made by my right honourable friend the Home Secretary to announce the list of 35 measures that the Government will seek to rejoin—those being in the national interest to do so. Command Paper 8671 outlines this list of measures and includes the Government’s Explanatory Memoranda on the full set of measures. I want to make clear that the Government are strongly committed to the set of 35 measures in the Command Paper and to a successful negotiation of rejoining these measures.
I am aware of concerns about the difficulty of opting back into some of the more important measures. For example, it is clearly not in the interest of any parties to have operational gaps for those subject to a European arrest warrant or any of the other measures that we seek to opt back into. These matters will be discussed further with the Commission. It is our intention to try successfully to resolve any issues in that regard but, because there is much to consider and much at stake, the exercise of the opt-out must be preceded by careful and intelligent analysis of the 130 or so measures covered by this exercise.
The Government have approached the question of the measures we should seek to rejoin from the perspective that our citizens should not have fewer protections after 2014 than they have now. We have listened to the views of law enforcement and other agencies that operate on the front line to keep our country safe. The piece of work we have put before both Houses is the result of that careful analysis. We want to continue to co-operate with our European partners where there is value in doing so—where it is in the national interest to do so. That commitment is reflected in the 35 measures listed in the Command Paper that we ask the House to endorse today. As a package, they enable co-operation over invaluable practical measures to aid our police forces and criminal justice system. These measures are a crucial tool in the fight against international crime and terrorism.
However, other measures in the original 130 are not so useful: they may be obsolete, defunct or simply unused. That is why the Government’s thinking on this issue has focused on the practical use of measures and whether we consider them valuable in the fight against crime and terrorism. This is why, for example, the Government wish to seek to rejoin the European arrest warrant. With free movement through the European Union, we clearly need strong extradition arrangements in place to see that justice is done. The record shows that since 2009, the arrest warrant has been used to extradite from the United Kingdom 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspected child sex offenders, 27 suspected rapists and 44 suspected murderers were extradited back to Britain to face charges. A number of these suspects would probably have never been extradited back to Britain without the arrest warrant.
The arrest warrant has transformed the extradition process within the EU from one that typically took years to a system that now takes weeks. A perfect example of this is the extradition of Hussein Osman, one of the failed July 2005 bombers, from Italy to the UK in just eight weeks. This is in contrast to the era before the arrest warrant, when it took a decade to deport terrorist suspect Rachid Ramda to France. Such success would have been unthinkable in the absence of EU police co-operation. As noble Lords and others have said, the functioning of the arrest warrant can be improved. The Government recognise this and the Home Secretary has already announced a proposed list of changes in the other place.
Another measure that the Government have also expressed a wish to rejoin is the European supervision order. This will improve the functioning of the arrest warrant by allowing suspects, in the appropriate circumstances, to serve their bail conditions in their country of residence, rather than remaining locked up in a foreign jail awaiting trial. Furthermore, we want our law enforcement agencies to continue to be able to establish joint investigation teams in order that offenders can be brought to justice as effectively as possible. One example of this is Operation Fry. This saw a joint investigation team with the Netherlands target the abuse of free movement through sham marriages. To date, this has led to 122 arrests, with 77 convictions and sentences totalling more than 100 years, and allowed us to initiate action to remove non-EEA beneficiaries of such sham marriages from the UK. That sort of co-operation would be infinitely more difficult as part of bilateral arrangements rather than as part of a wider EU framework of agreements.
We also want to rejoin Eurojust and measures aimed at fighting child pornography and other crimes that occur across borders. These measures offer a crucial method of combating cross-border crime with other member states.
On another front, I am sure all noble Lords want to see as many foreign national offenders as possible removed from the UK. The prisoner transfer framework decision provides for non-consent-based transfers throughout the EU. The Government support both the principles underpinning this measure and the measure itself, as an effective means of getting those who have abused our hospitality out of Britain to serve their sentences back where they came from.
Then there are measures such as the Naples II convention and the customs information system, which allow us to co-operate and gain access to information from across Europe that makes a real difference on the ground, such as the seizure of 1.2 tonnes of cocaine with a street value of up to £300 million that came from information received under the convention. There is also the second generation of the Schengen information system, a new way of sharing law enforcement alerts throughout Europe, which has the capacity to bring significant savings to our criminal justice system, as well as making it easier to identify foreign criminals and terrorists. The Government have been very open about their wish to connect to this database, which requires us to rejoin the police and criminal justice parts of the Schengen convention itself.
These are but a selection of the instruments that the Government believe it is vital to opt back into. The Government have done a lot of work to prepare the Command Paper and it outlines our strong commitment to measures to facilitate cross-border law enforcement. The Minister for Europe committed to a debate and vote in both Houses of Parliament. Not only do we want a debate and vote, however, we also want consultation with the committees. In inviting the committees both in this House and in the other place to submit reports, the Government are ensuring that Parliament is fully involved in the decisions taken.
Although the Command Paper outlines the Government’s current thinking, we will not begin formal discussions with the Commission and member states until after Parliament has had the chance to express its views. That is why today’s Motion from the Government also invites the appropriate committees to contribute to an analysis of the measures. The committees in the other place were invited to do the same in last week’s debate. The result of this process will inform the Government’s formal negotiations with the European Commission and the other member states.
Lord Maclennan of Rogart
Before my noble friend sits down, will he give us a categorical assurance that the opt-out will not result in a referendum or referenda having to be held in respect of what the nation has to opt back into? It appears that the opt-out moves responsibility and competences back to this country, whereas the opt-in would move them to the European Union and it might fall foul of the Government’s own Act.
Lord McNally
My Lords, that is hypothetical and we could spend the rest of the night on it. I have made a very clear statement of government policy, and it does no service to the House at all for hypotheticals such as that to be thrown across.
Queen’s Speech
Lord McNally Excerpts(11 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is a delight, an honour and a privilege to be opening today’s debate.
Yesterday we heard Her Majesty deliver the gracious Speech, followed by two outstanding speeches proposing and seconding the humble Address by my noble friends Lord Lang and Lord German. Both speeches were full of wit and wisdom and it was a pleasure to hear those voices from Scotland and Wales setting off the parliamentary year for this United Kingdom.
The debate proper was then opened by the Leader of the Opposition, and then by my noble friend Lord Hill in a tone of constructive engagement, which is already inspiring confidence in his leadership in all parts of the House. Now, and over the next few weeks, we will have the opportunity to examine the gracious Speech in detail.
We can already see the benefit of the fixed-term Parliament introduced by the coalition as we debate a gracious Speech firmly fixed on the issues of the day with a clear working year ahead and none of the “Will he, won’t he?” uncertainty of previous Parliaments entering their fourth year. As a result, we have a businesslike and practical agenda before us.
Today we will be discussing constitutional affairs, equalities, home affairs and the proposed reforms to our legal and penal system under the broad heading of justice and the law. As always, the linkage in policy between the Ministry of Justice and the Home Office will be as a seamless robe and I am delighted that the debate today will be closed by my noble friend Lord Taylor of Holbeach, the Minister in this House for the Home Office. I will be assisted throughout the year by my noble friend Lord Ahmad of Wimbledon, a man who has performed so well at the Dispatch Box in recent weeks that I have been thinking of asking for him to be moved.
I have never hidden from this House the reality that, in the present economic climate, Ministers have had to make hard decisions and tough choices to achieve an economic recovery underpinned by fairness, but I believe that in our first three years, we have made the tough decisions necessary while sustaining that rule of law which underpins a civilised society.
I am proud that we have carried through the first reform of the Rehabilitation of Offenders Act in almost 40 years, ended indeterminate sentences, clamped down on aggressive bailiffs, extended freedom of information and proactively provided more information than ever before via our transparency agenda. We have scrapped ID cards, increased parliamentary oversight of our security services, put restorative justice on a statutory footing, started reform of the European Court of Human Rights, via the Brighton declaration, and carried through a thorough update of our libel laws, all against the backdrop of a falling crime rate.
Here, I should like to pay tribute to the work of the outgoing Lord Chancellor, my right honourable friend Kenneth Clarke. I count myself lucky in my political career that I have had the pleasure of working closely with two of the big beasts of the Whitehall jungle, Ken Clarke and Jim Callaghan. Since last September, I have had the opportunity to work with the new Lord Chancellor and Justice Secretary, my right honourable friend Chris Grayling. I cannot pretend that there has been no change in approach since last September, but from day one the new Lord Chancellor and I have worked together as a close and harmonious team, and the gracious Speech reflects a radical programme of reform to strengthen our justice system.
We have clearly set out our priorities: first, reform of the criminal justice system and the courts, putting victims first and getting the various agencies around the table talking to each other. I am pleased that the new Victims’ Commissioner, our colleague the noble Baroness, Lady Newlove, has now taken up her post. We can also look forward very shortly to the criminal justice strategy and action plan, which will show just how we are joining up the different players and using technology to drive forward efficiencies. We are also consulting on a radical approach to how we treat our young people in custody. Despite fewer and fewer being incarcerated, more than seven out of 10 young people sentenced to custody still go on to offend again, so we have just consulted on a fresh approach to dealing with these young people by putting education at the heart of our youth justice system.
Breaking the cycle of reoffending is the key challenge not only in youth justice but throughout the criminal justice system. I have never doubted that prison works, both in terms of punishment and protection, but if we could break the cycle of reoffending the benefits for society would be enormous. The high rate of reoffending does not ruin just the lives of the victims of further crimes, very important though that is. It is also a dreadful deal for the taxpayer. We spend £3 billion a year on prisons. You do not have to be some woolly-minded liberal—if that is not a contradiction in terms—to see this as a bad return on investment if we continue to tolerate a high rate of reoffending. The worst part is that, at the moment, despite those sentenced to less than 12 months being most at risk of reoffending—I remind your Lordships that women are represented disproportionately among that group—they do not get help with rehabilitation. They are seen off at the prison gate with £46 in their pocket and very little else.
I have, earlier this morning, introduced the Offender Rehabilitation Bill, which will extend our rehabilitation measures for the first time to those serving sentences of less than 12 months. To carry through this rehabilitation revolution, we intend to open up the market to new ideas and new suppliers. We want to see a diverse range of new rehabilitation providers bringing new ideas and methods incentivised by their being paid, in part, for the results that they achieve. I have consistently said in this House that I have the highest regard for the probation service and those who work in it. The public sector part of the probation service will shrink, it is true, but it will have great responsibilities and increased status within the new structure. Before the Labour Party weeps too many crocodile tears over the demise of the old system, let me state again that we are using the powers contained in the previous Government’s 2007 Act to carry through the bulk of these reforms.
Finally, I have been genuinely encouraged by the response of the voluntary and not-for-profit sector in its enthusiasm for the opportunities to deliver real changes and new ideas to the challenge of offender rehabilitation. A number of noble Lords on all Benches have been campaigning for years for greater support to be given to those sentenced to less than a year; they have argued for better through-the-gate services and for more effective and better respected community sentences. I have to say to those noble Lords, very frankly, that without these reforms, much of what they have campaigned for would remain a pipe dream. With the legislation proposed in the gracious Speech, they have a real chance of becoming reality. The blunt truth is that we simply cannot afford the status quo, with offenders passing through the system again and again—more victims hurt, more communities damaged. I look forward to examining in detail our rehabilitation reforms in the very near future, as the Bill is starting its passage through Parliament in this House.
I turn to another measure which we will soon be considering in detail. The Children and Families Bill is a carryover from the last Session. It has already been the subject of constructive debate on all sides in the other place, led, for the Government, by my honourable friends Edward Timpson and Jo Swinson. The judiciary and local government have also been engaged in the development of the family justice provisions in the Bill. It includes a number of important reforms, such as introducing a 26-week time limit for completing care cases, and making attendance at mediation meetings a prerequisite for starting certain types of family proceedings.
Our guiding fundamental principle for the family justice system is that it must be about what is in the best interests of the child. Therefore, the Bill makes it absolutely clear that the court must regard the involvement of both parents in their child’s life after separation as furthering that child’s welfare, unless evidence shows that it would not. This legislation seeks to deliver a system that is more responsive, more efficient and in which more timely decisions are made to give vulnerable children the stability and security to enable them to make a success of their lives. I look forward to working with my noble friend Lord Nash on what I believe is a landmark piece of legislation.
I pay tribute to the work of David Norgrove, who chaired the family justice review. I am very pleased that he now chairs the national Family Justice Board, which has been set up to provide leadership and drive reform of the family justice system. We are already seeing the positive results of this approach, aided by local family justice boards.
This is also a timely opportunity to welcome Sir James Munby to his new post as president of the Family Division. As the new single family court becomes a reality next year, his drive and his judicial leadership will be essential to see the far-reaching reforms of the past few years carried through. I very much look forward to working with him.
I turn now to the Anti-social Behaviour, Crime and Policing Bill, which was introduced in the other place earlier today and on which the Home Office will lead. Persistent anti-social behaviour has a devastating impact on the victims and communities that need to be our priority. We are looking at this matter again because experience has shown that securing an ASBO has been a slow, bureaucratic and expensive process, often failing to change a perpetrator’s behaviour. That is why we are proposing new powers that are quick and easy to use and act as a real deterrent.
Breach of the proposed criminal behaviour order will be a criminal offence, with a maximum sentence of five years in prison. Obtaining a crime prevention injunction will be faster than securing an ASBO but breaching one would still carry serious penalties. The ASBO system we inherited is weighed down by red tape to the extent that orders can take weeks and months to process. By contrast, the new injunctions proposed in the Bill would see applications dealt with in days, or even hours in some cases.
The Bill will also carry on the vital work of police reform, where the input and experience in this House will be of particular value. I want to pay tribute today to Britain’s police forces. They face a series of challenges today that would have been unforeseeable to many who joined the force a generation ago, so under this Bill the College of Policing will get new statutory powers to enable it to carry on developing policing as the top-flight profession it is and must remain. The Police Negotiating Board will be replaced with an independent police remuneration review body, which will make evidence-based recommendations on police remuneration, and the Independent Police Complaints Commission will have its purview extended to oversee private-sector contractors and their employees.
The Bill will also tackle the iniquity of forced marriages, which are little more than slavery and are simply wrong. At the moment there is no specific offence on the statute book of forcing someone into marriage, so we are following up on the Prime Minister’s pledge of June 2012 and bringing forward provisions in this Bill to make forced marriage illegal and to make it an offence to breach a forced marriage protection order.
This Bill will also look at the fees charged to court users in civil cases to ensure that we can provide a modern and efficient court system. In particular, we will look at whether more funds can be recovered from commercial litigants to ensure that where people can pay more to access our world-class courts, they do so.
Finally, we also intend to bring forward further measures, subject to parliamentary time, to reform our immigration system, look at the public services available to those entering the country and reduce the complexity of immigration law.
No one can deny that, in the areas being discussed today, this is a Government full of ideas with a clear vision for the future. Even in the hardest of times, what government does must be tested against our commitment to the rule of law and access to justice and our willingness to protect civil liberties and human rights. We need to ensure that law-abiding members of the community are put first, that hard-working public servants on the front line are given our full support and that hard-working families can be confident in the knowledge that criminals are being brought to justice and communities kept safe.
I consider this House to be a House of candid friends. Such important measures deserve nothing less than your Lordships’ well informed scrutiny. The proposals from the MoJ and the Home Office are strong on ideas and radical in their solutions. I commend them to this House and look forward to debating their merits today and in the year ahead.
Crime and Courts Bill [HL]
Lord McNally Excerpts(11 years, 3 months ago)
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“Enforcement by taking control of goods
(1) Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (procedure for taking control of goods) is amended as follows.
(2) In paragraph 17 (enforcement agent may use reasonable force to enter etc where paragraph 18 or 19 applies) for “or 19” substitute “, 18A, 19 or 19A”.
(3) After paragraph 18 insert—
“18A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 14;
(b) the enforcement agent reasonably believes that the debtor carries on a trade or business on the premises;
(c) the enforcement agent is acting under a writ or warrant of control issued for the purpose of recovering a sum payable under a High Court or county court judgment;
(d) the sum so payable is not a traffic contravention debt.
(2) “Traffic contravention debt” has the meaning given by section 82(2) of the Traffic Management Act 2004.”
(4) After paragraph 19 insert—
“19A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 16;
(b) the enforcement agent has taken control of the goods by entering into a controlled goods agreement with the debtor;
(c) the debtor has failed to comply with any provision of the controlled goods agreement relating to the payment by the debtor of the debt;
(d) the debtor has been given notice of the intention of the enforcement agent to enter the premises to inspect the goods or to remove them for storage or sale;
(e) neither paragraph 18 nor paragraph 19 applies.
(2) For the purposes of a notice under sub-paragraph (1)(d), regulations must state—
(a) the minimum period of notice;
(b) the form of the notice;
(c) what it must contain;
(d) how it must be given;
(e) who must give it.
(3) The enforcement agent must keep a record of the time when a notice under sub-paragraph (1)(d) is given.
(4) If regulations authorise it, the court may order in prescribed circumstances that the notice given may be less than the minimum period.
(5) The order may be subject to conditions.”
(5) In paragraphs 24(2) and 31(5) (no power to use force against persons except to extent provided in regulations) omit “, except to the extent that regulations provide that it does”.
(6) Omit paragraph 53(2) (controlled goods to be treated as abandoned if unsold after a sale).
(7) Omit paragraph 56(2) (securities to be treated as abandoned if not disposed of in accordance with notice of disposal).
(8) In consequence of the repeals in subsection (5), in section 90 of the Tribunals, Courts and Enforcement Act 2007 (regulations under Part 3)—
(a) omit subsection (4) (procedure for regulations under paragraphs 24(2) and 31(5) of Schedule 12), and
(b) in subsection (5) omit “In any other case”.
(9) In Schedule 13 to that Act (taking control of goods: amendments)—
(a) in paragraph 37 (repeal in section 66(2) of the Criminal Justice Act 1972) for the words after “etc.),” substitute “omit subsection (2).”,
(b) in paragraph 74 (repeal of sections 93 to 100 of the County Courts Act 1984) after “93 to” insert “98 and”,
(c) in paragraph 85 (amendment of section 436 of the Insolvency Act 1986) for “436” substitute “436(1)”,
(d) in paragraph 125 (amendment of section 15 of the Employment Tribunals Act 1996) for ““by execution issued from the county court”” substitute “the words from “by execution”, to “court” in the first place after “by execution”,”, and
(e) in paragraph 134 (which amends Schedule 17 to the Financial Services and Markets Act 2000) for “paragraph 16(a)” substitute “paragraphs 16(a) and 16D(a)”.”
The Minister of State, Ministry of Justice (Lord McNally)
I beg to move that this House do agree with Commons Amendments 5. I shall speak also to Amendments 6 and 31. As the debates in this House and the other place have shown, there is broad agreement that more needs to be done to protect debtors from the unscrupulous practices of a minority of bailiffs, while at the same time ensuring that legitimate creditors can collect the money that they are owed. The Government are committed to achieving this. On 25 January, the Ministry of Justice published the Government’s response to the Transforming Bailiff Action consultation, which sets out the key reforms that we are undertaking to deliver on this commitment.
It may assist the House if I give a brief overview of the Government’s reforms, which centre on the implementation of Part 3 of the Tribunals, Courts and Enforcement Act 2007. Among other things, they will remove antiquated and confusing laws, provide clarity about the power of bailiffs, allow for the introduction of regulations setting out what goods a bailiff can or cannot seize and introduce a clear and fair charging regime. Furthermore, new mandatory training and an enhanced certification system will ensure that the individuals carrying out this difficult job are the right people, and will build on the existing remedies available if things go wrong.
The Government believe that the framework for the regulation of bailiffs in Part 3 of the Tribunals, Courts and Enforcement Act 2007 generally strikes the right balance between ensuring that all bailiffs operate to appropriate minimum standards and not subjecting the industry to overburdensome regulation. As such, I hope that the House can readily agree Commons Amendment 5, which will enable us to correct a number of inadequacies in the legislation. Having done so, we will be able to move quickly to bring Part 3 of the 2007 Act into force.
The key changes made to the 2007 Act are threefold. First, the amendment removes the ability to make regulations that would confer a power on enforcement agents to use reasonable force against debtors. It is one thing to countenance the use of reasonable force to enter premises; it is quite another to authorise such force against a person. Here the 2007 Act plainly got the balance wrong and it is right that we should provide this additional safeguard.
Lord Beecham
My Lords, I join the noble Baroness in welcoming the Government’s moves to tighten up the arrangements for bailiffs. Like her, however, I regret that they have failed to take the ultimate step of establishing a clear and relatively straightforward regulatory system. I am slightly puzzled by some aspects of their response to the consultation. For example, in paragraph 18 of their response, the Government say that they will implement Section 64 of the Act and “produce regulations” about the regulation of enforcement agents, which is a somewhat circuitous expression. Nor is it entirely clear where that would be heading.
Equally, the response goes on to say at paragraph 134 that the Government,
“will continue to work with stakeholders from the enforcement and advice sectors in developing the content of the regulations and will also work with HM Courts and Tribunals Service and the judiciary on the court procedure”.
I take it that that means that, ultimately, the Government will produce regulations to be approved by both Houses. Perhaps the noble Lord would be able to confirm that. It is clear, as the Minister has pointed out, that much of the work—or, any rate, the function—of the industry is directed towards recovering sums due to local or central government, hence the involvement of the Local Government Ombudsman. That work is likely to be enhanced considerably as councils seek to recover, if it is economical to do so, the likely shortfall in the collection of council tax now that a significant cut has been made in council tax support, and many people will now be called upon to pay council tax who have not hitherto done so, in rather small amounts. That may make collection uneconomic.
Be that as it may, and quite taking the point about the Local Government Ombudsman’s position, would it not be sensible, if we are thinking in terms of sensible regulation without offering competing avenues for this, for the Local Government Ombudsman’s responsibilities to be widened so that he can undertake that regulatory role for the whole system? Why not? Hopefully, local authorities, either singly or collectively, will in any case employ staff directly rather than contract out. It is in the contracting out of the service that we see so many of the problems.
It is interesting that the advice sector did not agree with the not unexpected majority of the enforcement sector and creditors in saying that the existing complaints process was sufficient and did not require any further government intervention. The advice sector thought that the processes,
“have proved to be ineffective or inadequate”.
Given the Government’s propensity to rely on the voluntary sector to make good the damage inflicted upon advice services generally—the withdrawal of legal aid and legal advice, for example—one might have thought that they would pay rather more attention to the advice of the sector in this sensitive area. As the Minister has, in fairness, readily recognised, there have been too many instances of abuse for us to be comfortable with the present position.
Finally, the Government propose a rather curious process of review at one, three and five-year intervals. It is not clear quite what form that would take, but I ask the Minister for an assurance that if it is seen that there is no significant improvement in how the system is working, they will revert to the concept not merely of support, advice and certification but of a proper regulatory system to which people can have ready and inexpensive access.
Lord McNally
My Lords, I will re-emphasise why we are not introducing an independent regulator. The legislative changes that we are making to protect people in debt from aggressive bailiffs together with the new laws and mandatory training and certification scheme, which bailiffs must pass before going into business, will provide enough protection against aggressive bailiffs. Bailiffs who do not follow the rules will be barred from the industry. We will also clarify the complaints process so that debtors know how to seek redress and what the responsibility of creditors and enforcements agents are.
As I have explained, in the process, the appropriate regulator in each of the areas where bailiffs are used will be able to be appealed to. We mentioned this small degree of commercial debt—less than 1%—and I would be happy to receive any representation from either the CBI or the Federation of Small Businesses if they thought that this was a genuine loophole causing a real problem.
Every individual will have access to an appropriate complainant authority. As the noble Baroness pointed out, we have indicated that we are looking for something like a three-month training programme; it will not just be a tick-box exercise. We are looking at other parts of the forest, as it were, to see whether there are training modules and practices that we can readily adapt. I confirm that the local government ombudsman will have responsibility for private bailiffs when they are acting for local authorities.
The noble Baroness rightly raised the problems of dealing with people who may have some difficulties with mental capacity. We would hope that in the training will come a clear responsibility to recognise and assess such situations. Where they identify that a vulnerable person is involved, they will refer back to the relevant authority to further instructions and, where necessary, bring in other assistance to deal with the situation.
As I have said, we are developing training that we consider a minimum requirement. We have not yet been able to gauge exactly the length of time that the training would take. However, we are clear that, at a minimum, bailiffs will need to understand the role that they play, the law that governs their powers, the practice of taking control of goods, the fees that they can charge and, as I have said, specific training to deal with vulnerable people.
On whether the system will allow complaints against bailiff firms as well as individuals, most complaints about bailiff companies relate to the fees charged by their bailiffs, the type of goods seized and the ways in which they were seized. All these issues will be dealt with under the new regulations and will be subject to the means of redress. The behaviour of individual bailiffs on the doorstep will be regulated through the certification system. Poor behaviour can be addressed by the removal of a certificate. We are working with the advice sector to identify any complaints that would fall outside the regulation. All bailiffs will have to be certified, and I can confirm that training will be independently accredited.
We will bring forward the regulations by negative resolution. The regulations have already been subject to a full and open consultation. Comments were invited as part of this process and were included with the consultation paper. Officials are currently working with stakeholder groups to refine the regulations, and we plan to make them available by the summer. As set out in the Tribunals, Courts and Enforcement Act 2007, the regulation will be subject to the negative procedure for statutory instruments.
As I said, I believe that what has been put forward in a way is greatly to the credit of the noble Baroness, Lady Meacher, who has championed these ideas through the House. I hope she recognises a victory when she sees one. I certainly hope, as I said before, that the House will agree to Amendments 5, 6 and 31.
“Awards of exemplary damages
(1) This section applies where—
(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time,
(c) the claim is related to the publication of news-related material, and
(d) the defendant is found liable in respect of the claim.
(2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
(3) But the court may disregard subsection (2) if—
(a) the approved regulator imposed a penalty on the defendant in respect of the defendant’s conduct or decided not to do so,
(b) the court considers, in light of the information available to the approved regulator when imposing the penalty or deciding not to impose one, that the regulator was manifestly irrational in imposing the penalty or deciding not to impose one, and
(c) the court is satisfied that, but for subsection (2), it would have made an award of exemplary damages under this section against the defendant.
(4) Where the court is not prevented from making an award of exemplary damages by subsection (2) (whether because that subsection does not apply or the court is permitted to disregard that subsection as a result of subsection (3)), the court—
(a) may make an award of exemplary damages if it considers it appropriate to do so in all the circumstances of the case, but
(b) may do so only under this section.
(5) Exemplary damages may be awarded under this section only if they are claimed.
(6) Exemplary damages may be awarded under this section only if the court is satisfied that—
(a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,
(b) the conduct is such that the court should punish the defendant for it, and
(c) other remedies would not be adequate to punish that conduct.
(7) Exemplary damages may be awarded under this section whether or not another remedy is granted.
(8) The decision on the question of—
(a) whether exemplary damages are to be awarded under this section, or
(b) the amount of such damages,
must not be left to a jury.”
Lord McNally
My Lords, I beg to move that this House agrees with Commons Amendment 11. With this I shall speak also to Commons Amendments 12 to 19, 38, 46 and 131, and to the government Amendments 17D, 17H and 131BA to those amendments. This group of amendments, together with a new clause which your Lordships’ House has already added to the Enterprise and Regulatory Reform Bill, implement legislative parts of the Leveson cross-party agreement. Clearly these have been the source of much interest over the last week, since the Prime Minister announced last Monday that he had reached agreement with the Deputy Prime Minister and the Leader of the Opposition on proposals for a royal charter. As part of that agreement, the three parties also agreed proposals and exemplary damages and costs that are designed to incentivise publishers to join the new regulatory framework. These proposals are the subject of this group of Commons amendments.
I will first explain the key features of the Commons amendments. Commons Amendments 11 to 15 relate to exemplary damages, which are already available under the common law. They are, however, very rarely awarded, as they are reserved for the most serious cases. They are designed to punish, and only where there is no alternative. That general position will not change, although the new scheme for relevant publishers will change the position for them in relation to certain types of cases relating to the media, namely cases for defamation, misuse of private information, breach of confidence, malicious falsehood and harassment, as specified in Amendment 19.
Commons Amendment 11 incentivises publishers to join the regulator by making it clear that a court may contemplate awarding exemplary damages only in cases where a publisher has not joined the regulator, with very limited exceptions. This is on the basis that a publisher joining the regulator will face the prospect of regulatory fines of up to £1 million. However, subsection (3) of the new clause also provides that if a court is persuaded that a regulated publisher has acted in a way that would lead the court to award exemplary damages but for their membership of the regulator, and the regulator has acted manifestly irrationally in its approach to sanctioning that conduct, the court may exceptionally make an award for exemplary damages in that case. I know that this is one of the points on which my noble friend Lord Lucas has sought clarification in his Amendment 11A. I hope that he will agree that this is a very limited and clear exception to that rule, being available only when a court concludes that the regulator has acted in a manner that is manifestly irrational—a very high bar.
Lord Stevenson of Balmacara
My Lords, I am grateful to all noble Lords for participating in this debate, which has echoed a number of occasions on which we have been able to touch on these topics in the context of several Bills over recent months. We have not always stood opposite the noble Lord, Lord McNally, although he has been quite strong, particularly as we saw his cherished Defamation Bill begin to slip away from him. However, I think I see it looming in the background, and the noble Lord has cheered up again, which is nice. We also touched on them in the Enterprise and Regulatory Reform Bill, where we did a great deal of work with the excellent amendments tabled by the noble Lord, Lord Skidelsky. They were not moved, but they certainly raised the issues that we are considering today. Of course, we now have the Crime and Courts Bill before us, so there is endless flexibility, and long may that last. I should like particularly to thank the noble Lord, Lord Skidelsky, who has been tireless in tabling amendments that give effect to the detail of the Leveson recommendations and reinforce the fact that the royal charter and its statutory underpinning have been agreed by all three parties in an historic agreement.
We need to recognise that the debate on Leveson has moved on. The most important thing now is to be clear on what the government amendments intend to do and avoid any unnecessary scaremongering. I shall focus on a number of the amendments before us and, like the noble Lord, Lord Skidelsky, I should like the Minister to comment on how he intends to respond to them.
My first strand is on exemplary damages, but I have been sufficiently warned off by the noble Lord, Lord Phillips, even to go down this route. However, there are a couple of points that I would like the Minister to respond to. I understand that a considerable amount of time was spent in the all-party talks on the question of what happens to damages when it transpires that the facts of a case have changed in that the court has facts which were not available to the regulator. Can the Minister help us on this issue as it has happened in recent months? Can he confirm that this is a matter which will be returned to?
Amendment 11C clarifies that the common law gateway for exemplary damages will not apply. Can the Minister confirm that the “for profit” test is not required if the “outrageous” test is met? Amendment 11D makes it clear that a relevant publisher will be vicariously liable for wrongdoing by an employee or a person contracted to work for a publisher which results in liability for exemplary damages in accordance with the ordinary common law tests. Can the Minister confirm that further work will be done on this question? It is a key issue that is dealt with succinctly in the amendment tabled by the noble Lord, Lord Skidelsky. Vicarious liability bears on the morality and culture of the press. It is important that the Government should put on the record today that they agree with the noble Lord, Lord Skidelsky, and that they intend to return to this issue in the Commons to the extent that this may be required. The recent history, after all, shows that it matters. We do not want a situation where publishers literally have a get-out-of-jail-free card, and it would be strange if the media were to be in a privileged position in relation to vicarious liability compared with all other interests in this country. Lastly in this group, Amendment 13A is intended to reassure small publishers that, in deciding the amount of exemplary damages, the court will have regard to the means of the defendant. Can the Minister confirm that the Government will return to this issue when it is considered again in the Commons?
The second group of amendments that I would like to look at contains those amendments that are intended to make it clear that to benefit from cost protection the publisher would have to participate in the self-regulator’s arbitral scheme. With regard to Amendment 17E, the Government’s intention is that in order to benefit from cost protection the publisher would not only have to be a member of an approved regulator but would also have to participate in the scheme. There are those who have argued differently. Surely it makes no sense to provide benefits to publishers simply on the basis that they recognise that an arbitration scheme exists. The point here should be that it is the active participation by publishers in the scheme that entitles them to get cost benefits. In any case, as Lord Justice Leveson pointed out, an incentive to join an arbitration scheme is good for all publishers and will help them and the claimants. Can the Minister confirm that this is his understanding of the situation and that the Government stand ready to confirm this position in the other place?
Amendment 17J asks for clarification, as raised by the noble Lord, Lord Skidelsky, about the commencement of Sections 44 and 46 of the LASPO Act 2012, which was taken through the House by the noble Lord, Lord McNally, so he should know his stuff on this. I should be grateful for some confirmation about the issues that arise from that question. Amendment 19B would require that the recognition panel, which approves the self-regulator, is subject to freedom of information. This is an important matter which surely should be brought forward at this stage. After all, it is something that can be dealt with by secondary legislation. No one would surely expect that the recognition body wishes the power to act in secret. This really is important, so will the Minister give us an assurance that the relevant statutory instrument will be brought forward in good time before the regulator starts its work? Amendment 131A concerns relevant publishers which hold broadcasting licences. The drafting here is a little opaque. We seek an assurance from the Minister that a person who holds a broadcasting licence is excluded only in so far as they publish news-related material in the course of their broadcasting activities. Can the Minister confirm that this is not intended to cover the whole publishing activity of such licence-holders but only their broadcasting activity?
My Amendment 131F, which was put down earlier and is part of this group, has, I think, been overtaken by events. I refer to the extensive introduction which the Minister gave to Amendment 131BA, which provides for:
“A person who publishes a small-scale blog”.
I think it is meant to be a peg to allow for further discussion and debate for this event to happen in the House of Commons. On the basis of that understanding, for which I am grateful to the Minister, I will not press that amendment when the time comes.
Finally, there has been some talk about dates and the time that all this comes into effect. I should be grateful if the Minister could be very clear about what he understands the implementation date to be.
Lord McNally
My Lords, I am extremely grateful to all noble Lords who have contributed to what has been a very thoughtful debate. I should perhaps start with the intervention by the noble Lord, Lord Black, because I am not sure whether it was the case for the defence or a warning of battles to come. He said that Lord Justice Leveson was as immune from being criticised as Florence Nightingale. I would have thought that the lady would have got a fair old battering from the noble Lord, Lord Black, if his speech was anything to go by.
Looking round the Chamber and listening to the contributions, and following this debate right through, I have never been in any doubt that many of the politicians in this Parliament would literally lay down their lives for the freedom of the press. It is not the case, as has been suggested in some of the very newspapers over which the noble Lord, Lord Black, has influence, that this is some Orwellian plot against the freedom of the press. As my noble friend Lord Phillips said, if by chance we saw what follows as an attack on the freedom of the press, I believe that the people who would be most likely to leap to the defence of the press would be not some of the media barons but noble Lords in this Chamber tonight and Members in the other place.
Although it was a well thought out and well delivered critique, I regret a little bit that nowhere in the remarks of the noble Lord, Lord Black, was there any apology. There was no recognition of the law-breaking on an industrial scale, no understanding of how deeply wounded the victims of press intrusion have been and no recognition of the deep disgust of the general public, which is reflected in the opinion polls that we have seen. I understand the message that was delivered. He asked me to pause. I genuinely ask the noble Lord, Lord Black, to pause and think whether he could not go back to those with whom he has immense influence and say, “Rather than trying to wreck this, couldn’t we see if we could make it work?”. To my mind, the prize is a great one—a free press, but a free press operating to the highest standards of ethics and one that is law-abiding. I believe that that is within our grasp if we can work together on this.
Lord Phillips of Sudbury
Before my noble friend sits down, and I congratulate him on the legislative equivalent of a marathon, I ask him whether he sympathises with the view that to have 44 important and often complex amendments put together in one group—the third group today contained 85 amendments —is not conducive to the quality of scrutiny that the Bill deserves. I mean no disrespect to him.
Lord McNally
I appreciate my noble friend’s intervention. At one stage during my speech I began to have sympathy with Chancellors of the Exchequer. In many ways, of course, this is not an ideal situation. On the other hand, if you take into account Baldwin’s cri de coeur against the press—was it in 1932 or 1933?
Lord McNally
God bless you, sir. This is the great value of this House; you ask a question and you get an authoritative answer. Baldwin’s cri de coeur was 80 years ago. I was thinking while the noble Lord, Lord Black, was speaking that it is 20 years since David Mellor warned the press about the last chance saloon, and it is 10 years since I was told from this Dispatch Box that a very minor amendment was the slippery slope to a state-controlled press, so we have not been discussing entirely new and fresh issues.
We have done what we have quite miraculously, I think, because it has needed a leap of faith and a generosity of spirit from all three parties. The Prime Minister, the Deputy Prime Minister and the Leader of the Opposition have come together and given national leadership on an issue that probably would never have got through in any other way. This has its flaws but is still a way forward that has eluded Parliament, as I say, for 80 years.
Lord Skidelsky
Before the Minister sits down, may I have his assurance that, in the cross-party talks that will take place on a number of outstanding issues, Conservative and Liberal Democrat participants will be able to take different, independent positions?
Lord McNally
As one who has had the good fortune to watch the traffic of the cross-party talks, and who has a strong view that my noble and learned friend Lord Wallace of Tankerness is in line not for a knighthood but for a sainthood for his patience in those talks, I assure the noble Lord, Lord Skidelsky, that all three parties have shown a robust individualism in the talks but, thank goodness, have also shown the generosity of spirit that has made agreement possible. If we can get the balance right between clear, vigorous discussions and generosity of spirit, we will get this done. I do not know whether we are getting a fish in the boat or a ship to port but, whatever it is, I recommend it to the House.
Lord Mackay of Clashfern
Before my noble friend sits down, I have one question. He will remember vividly that the noble Lord, Lord Puttnam, moved an amendment to the Defamation Bill on Report, which this House carried. My noble friend anticipated at Third Reading that that would be dealt with in due course by an agreement that would supersede the amendment. The passage of time has fulfilled his prophecy, and I am sure we are all glad of that. I am assuming that now the Defamation Bill will be able to proceed, as it merits, to Royal Assent by the end of the present Session.
Lord McNally
Noble Lords cannot imagine the tingle in my shoulder blades when I realised that the noble and learned Lord, Lord Mackay, had risen to his feet. I thought, “My God! What question of law is he going to ask me to pronounce on?”. I am very pleased to understand that there is all-party agreement and that after the due process of whatever they do down the other end the Defamation Bill will be returned without the Puttnam amendment, although when the history of this saga is written, it will be said that the Puttnam amendment did its job. I am not so bitter about it, especially since the Bill is coming back without it.
Lord Puttnam
Nothing in the world will delight me more than to see the Defamation Bill passed in its original form.
Lord Lucas
My noble friend has been suspended above his seat for a longer time than the Maharishi Yogi ever achieved. At risk of prolonging that, before my noble friend sits down, will he confirm, in order that he might get his supper this hour rather than next, that the matters that the noble Lord, Lord Stevenson, raised in his speech will be under active consideration in the Commons before this Bill returns to this House?
Lord McNally
I will look at what the noble Lord, Lord Stevenson, raised, but I warn the House against the idea that what is going back to the House of Commons is a reopening of these discussions. We have said what we want to see passed, we have asked noble Lords to withdraw. I have explained. I do not want to mislead the House. The Commons will be able to consider only their amendments that have been amended by this House. For example, if we do not today amend Commons Amendment 14, that amendment will no longer be in play during the next round of ping-pong. We are not sending the Bill back to the Commons for another go. Quite frankly, that would be extremely dangerous. My reply was carefully crafted by many hands far more expert than mine in a way that I hope gives the assurances that were sought in raising the amendments, not least those tabled by the noble Lord, Lord Skidelsky, However, the way that ping-pong works keeps the debate very tight and I do not want to mislead the House that it allows a rerun of negotiations on this. To even suggest that would be a bad mistake.
Lord McNally
The Lord Speaker will be pleased to know that it gets a lot clearer from now on.
I beg to move that this House do now agree with the Commons in their Amendment 133. This amendment removes Part 7 of Schedule 15, which would have required contracts between the Secretary of State and probation trusts to place an obligation on trusts to make appropriate provision for the delivery of services for female offenders. This included making provision for women to participate in unpaid work and rehabilitative programmes with their particular needs in mind. As noble Lords will recall, Part 7 of Schedule 15 was inserted into the Bill at Third Reading when the House agreed an amendment in the name of the noble and learned Lord, Lord Woolf. With his customary courtesy, the noble and learned Lord, Lord Woolf, has explained to me that family and religious observations have meant that he cannot be with us tonight, which I fully understand, although I see some familiar faces around the Chamber of noble Lords who are involved in this matter.
I know that the Commons’ decision to remove Part 7 of Schedule 15 will have been a disappointment to many in this House. As the high quality and impassioned contributions to the earlier debates on this issue showed, addressing the needs of female offenders is a key priority for many here. I therefore reaffirm that the Government are committed to addressing the factors associated with women’s offending, and to taking a different approach where there is a need to differentiate provision for female offenders. We recognise that we will rehabilitate female offenders and enable them to lead positive and productive lives only if we a take a different approach where it is required.
Lord Rosser
My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.
The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,
“in providing strong leadership on delivery of our strategic priorities”.
However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?
It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,
“relatively small number of female offenders presents particular challenges”.
Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.
Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.
The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,
“women-only groups, where run, were often successful”.
It found that,
“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.
At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.
If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.
Lord McNally
My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.
Baroness Corston
My Lords, the noble Lord, Lord McNally, must know that during our time in government, 39 women’s centres were set up—£15 million was spent setting them up—to divert women from custody. I take great offence at his suggestion that nothing happened.
Lord McNally
I am not suggesting that nothing happened, but I am suggesting that the problems that we are facing now are very real. We have made progress on this. We have ring-fenced funds in a time of very real problems for government funding. I am surprised that the noble Lord, Lord Ramsbotham, did not make even a passing reference to the fact that we are for the first time dealing with prisoners serving sentences of less than 12 months. I know that the previous Government tried that and then abandoned it. However, every time a Government try to make progress with an advisory committee it should not just be dismissed. I have been working for six months with Helen Grant and she is someone who is going to take responsibility. The Secretary of State has made her the Minister for Women’s Prisons, separating it out from other prisons so there is a line of responsibility.
Police: Strike Action
Lord McNally Excerpts(11 years, 8 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
I think we should hear from my noble friend Lady Doocey. The Labour Benches have had two.
Lord McNally
I think that noble Lords will find that I have given a fair run around the House. It is fair to hear from my noble friend Lady Doocey.
Baroness Doocey
My Lords, do the Government accept that when they reform provisions for long-term sickness, a distinction must be made for police officers who have been injured in the line of duty so that they are not unfairly penalised?
Crime and Courts Bill [HL]
Lord McNally Excerpts(12 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I thank the noble Lord, Lord Beecham, for that offer at the end. That is exactly how we wish to approach the Bill. I am grateful for the broad welcome that has come from all parts of the House about the thrust of the Bill and I recognise that, in a limited time, people are bound to raise the points that they do not like rather than emphasise the points that they do like.
The noble Lord was a little modest in his introduction. He is a very distinguished lawyer and, as he knows, I am not. In the two years I have been in this job, I have got used to saying very quickly to people, “I am not a lawyer”. I have now abandoned that mantra because my noble friend Lord Thomas of Gresford took me for lunch the other day with a very distinguished professor of law from the University of Yale. I used my usual defensive opening, “Well, I am not a lawyer”, and he leant forward and said, “Then I’ll speak very slowly”.
However, I share the view of the noble Lord, Lord Beecham, that we have benefited from a debate in which we have been able to hear a wide range of people with tremendous depth of experience about the issues under discussion. We have heard from some of our most distinguished judicial representatives: the noble and learned Lord, Lord Woolf, is a former Lord Chief Justice; my noble and learned friend Lord Mackay, is a former Lord Chancellor; the noble and learned Lord, Lord Lloyd, is a former Law Lord; and the noble and learned Baroness, Lady Butler-Sloss, was President of the Family Division. It is always a great pleasure to hear their contributions. I always have some mixed feelings about the interventions from my noble and learned friend Lord Mackay because he says things in such a gentle voice that I am convinced that he is on my side but at about two o'clock in the morning I wake up and realise that he has delivered the most devastating critique of what I was hoping to do. So I shall wait for that 2 am moment some time tomorrow morning.
This has been a very good debate. I fully take on board that we have a task in Committee to look at these proposals. Some of the issues that have been raised will have to be explained, debated and discussed, and how we propose to do things will have to be weighed against alternatives. That is certainly how my noble friend Lord Henley and I will take this forward. I would also like to put on record our thanks, particularly for Part 2 of the Bill, to the Constitution Committee for its contribution: a very timely report. With her usual courtesy, the noble Baroness, Lady Jay, explained to the House, and to me separately, why she could not be with us for the wind-ups tonight. I know that she will play a full part when we reach Committee.
I will try to cover a range of the issues raised during the debate. Although we will be returning to them all in Committee, it is right that I also try deal with them tonight. A large number of people—the noble Lords, Lord Ramsbotham, Lord Harris and Lord Prescott, and the noble Baronesses, Lady Smith and Lady Doocey—raised the question of whether there was an incipient conflict between the accountability of the PCCs and the National Crime Agency. I am not sure. I think that the best answer probably came from the noble Lord, Lord Dear, in his recognition that there will probably be a certain tension in these roles but not a destructive tension.
Somebody mentioned that there has been a debate since 1929 about how national and how local a police force should be. It is true that in this country we have had policing that has done both, but as fresh challenges have come up, successive Administrations have sought to create agencies that can meet the wider challenges that go beyond localism without losing the benefits of localism. I agree with the noble Lord, Lord Dear, that this is not a slippery slope towards an FBI. It will be a powerful agency, and again I hear what the noble Lord says about the importance of the power of direction if it is going to be effective. However, that is something that we can look at in Committee.
I move on to the powers of the director-general to direct a police force in England and Wales to perform a particular task, and whether that conflicts with the chief officer’s accountability to the local police and crime commissioner. The power of the director-general directly to task a police force will be a very limited backstop measure, used only when co-operative arrangements cannot be agreed on and where it is essential for the national effort against serious and organised crime that action is taken by that police force. This power does not cut across the responsibility of police and crime commissioners to hold their chief constables properly to account for the totality of policing in that force’s area, including tackling cross-boundary policing challenges such as organised crime, terrorism, public disorder, civil emergencies and cyberthreats. This includes the responsibility of police and crime commissioners to ensure that their chief constable co-operates effectively with the National Crime Agency.
Noble Lords asked whether this would be done within a reduced budget. We are clear that the National Crime Agency, like SOCA, will need to live within its spending review settlement, which will be based on the respective budgets of the precursor organisations. The agency will deliver more through its enhanced intelligence capability, capturing a single national picture of the threat presented by organised crime. It will also have more effective tasking and co-ordinating arrangements, enabling more effective prioritisation and smarter use of its own and others’ assets.
Lord Berkeley
The noble Lord twice mentioned organised crime. Will he explain what disorganised crime is?
Lord McNally
Not at 9.35 pm after six hours of debate. We will leave that for another day.
The noble Baronesses, Lady Hamwee and Lady Smith, asked whether CEOP would retain its identity. CEOP will keep its ability to create and maintain the innovative partnerships that are so valuable. It will keep its independent brand and multidisciplinary workforce, and it will have a ring-fenced budget, operational independence within the NCA and independent governance.
The noble Baroness, Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord McColl and Lord Dear, raised the question of human trafficking. The National Crime Agency will have a key role in building on the existing arrangements for tackling human trafficking by using its enhanced intelligence capabilities and co-ordinating functions to target organised criminal gangs involved in human trafficking, wherever they are. The UK Human Trafficking Centre will move into the National Crime Agency as part of the precursor transfer of the Serious Organised Crime Agency. This will ensure that human trafficking continues to receive the priority and attention that it deserves.
My noble friend Lord Alderdice raised the important and particular issue of how the National Crime Agency will operate in Northern Ireland. The NCA will be a UK-wide agency. In framing the provisions of the Bill and developing the operating model on the ground, we were acutely conscious of the fact that policing is devolved in Northern Ireland, and of the need to work with the grain of existing police arrangements. My right honourable friend the Home Secretary worked closely with the Minister of Justice, David Ford, to ensure that the legislative framework properly respects the devolution settlement. The provisions were designed not to interfere with the important accountability arrangements for policing in Northern Ireland. In accordance with the Sewel convention, it will be necessary for the Northern Ireland Assembly to agree a legislative consent Motion in respect of the provisions in Part 1 of the Bill. I am sure that the Assembly will debate the matter robustly, and we will welcome any proposals for strengthening the partnership working between the National Crime Agency and the Police Service of Northern Ireland.
The noble Baronesses, Lady Doocey, Lady Hamwee, Lady Harris and Lady Smith, and the noble Lords, Lord Dear and Lord Condon, raised the question of counterterrorism functions. We have made it very clear that decisions on the future of counterterrorism policing should not be taken until after the 2012 London Olympic and Paralympic Games, and after the NCA has been fully established. Only then will counterterrorism policing be considered, and decisions taken on what role the NCA might play. Without prejudice to any further decision on the issue, Clause 2 will enable the functions of the NCA to be extended by order to cover counterterrorism policing. Any such order would be subject to super-affirmative procedures to ensure full parliamentary scrutiny. I agree with the noble Lord, Lord Dear, that we do want any turf wars. Just as we will set an example in this House of constructive examination of the cases, I hope the various police authorities will do the same.
The noble Baroness, Lady Smith and my noble friend Lady Harris raised the question of whether the new agency will be exempt from the Freedom of Information Act. I am the Minister responsible for freedom of information and I have given this considerable thought. At the moment SOCA is covered by the Freedom of Information Act. The question I had to face was whether it was cleaner simply to make the larger body exempt. It is a matter that can be well examined in Committee. We are committed to making the National Crime Agency open, public-facing and transparent. Careful consideration was given to whether the National Crime Agency should be brought under the Freedom of Information Act, which was not the case with the Serious Organised Crime Agency. We want the public to have access to a wide range of information about what the agency is doing, how it is performing, its internal procedures and the latest assessment of the threat from organised crime. The measures in the Bill, such as a duty to publish information, will ensure that this happens. The National Crime Agency will handle large volumes of sensitive information, including intelligence material which could have a critical impact on national security. If the National Crime Agency were subject to the Freedom of Information Act, there is a risk that international and private-sector partners would be more reluctant to share information with the agency. Intelligence shows that organised criminals will seek to exploit any avenue, including freedom of information requests, to further their criminal activity. As I said, it was a matter of a judgment. I am very happy to revisit it in Committee. Perhaps when we do so, the Opposition could tell us why SOCA was exempt from the Freedom of Information Act and we could explore their thinking at that time. I suspect it was not very far from the thinking that we have gone through when looking at the setting-up of this agency.
The noble Baroness, Lady Smith, and the noble Lord, Lord Condon, asked about the National Policing Improvement Agency functions. The wind-down of the agency is well under way with some functions already transferred to the Home Office and others to the Serious Organised Crime Agency as an interim step to their new home in the National Crime Agency in 2013. A programme of further transfers to other successor organisations, such as the new police professional body and the new police information and communications technology company is being managed in conjunction with the National Policing Improvement Agency. My right honourable friend the Home Secretary has already set out the details of these transfers in two Written Ministerial Statements. The future destination of all remaining National Policing Improvement Agency functions will be announced in due course.
The noble and learned Lord, Lord Lloyd of Berwick, the noble and learned Baroness, Lady Butler-Sloss, the noble Lords, Lord Elystan-Morgan and Lord Ponsonby of Shulbrede, and my noble friends Lord Thomas of Gresford and Lord Dholakia asked about changes to the county and family courts. There is no secret agenda for further court closures. That is a separate issue that will be debated, discussed and decided on its merits at the time. In both cases this will give greater flexibility and efficiency, and in the main the practitioners involved in those courts have welcomed the move. I was particularly pleased to hear the endorsement that the noble and learned Baroness, Lady Butler-Sloss, felt able to give, although I suspect that, once again, we will examine this carefully in Committee.
An issue that is of concern to my noble friend Lord Dholakia and the noble Lord, Lord Ponsonby, as well as the noble and learned Baroness, Lady Butler-Sloss, is whether the role of magistrates will be diminished in the new single family court. I can assure noble Lords that the Government have no intention of diminishing the importance of magistrates in the family justice system. Magistrates will continue to play a vital role in the new family court, but on the specific question of whether a lay magistrate would sit alone in these cases, the answer is no.
There was a full and informed discussion on the merits of diversity. One of my tasks in the Ministry of Justice is to promote diversity. To a certain extent I accept the point made by my noble friend Lord Thomas that, particularly at the top end, the shape of our judiciary reflects the Bar of 30 years ago. However, I have said before from this Box that when people ask me what the biggest difference is on returning to Whitehall after a 30-year gap, it is that the Civil Service has managed to diversify in a most remarkable way over that period. Although I might have started life as a Fabian, I am not convinced that the inevitability of gradualness is going to produce the diverse judiciary that a 21st century functioning democracy deserves. I am in nothing but awe of both the intellectual calibre and the integrity of our judiciary. Wherever I go, I realise what a great national asset we have in it. However, I do not think that its merit cannot be produced from a more diverse source that better reflects our society.
I look forward to discussing these issues in Committee and I hope that we will see broad cross-party support in this House for what we are trying to do. We are not proceeding recklessly, rather we are building on some worthwhile reforms. We have listened to much of the advice given by the Constitution Committee and I think that we are on the right track. However, I also agree with a point that was made a number of times, which is that if we are going to get diversity, it is not a matter for government alone. The professions and the judiciary have to buy into it. The noble Baroness, Lady Neuberger, asked particularly about the Judicial Diversity Taskforce. The work of the taskforce on diversity is crucial and I can provide a reassurance that it will continue to drive progress in this area. I certainly made it clear when I became Minister that one of my priorities was attending meetings of the taskforce and making sure that we kept up the pressure and commitment from the various parts of the system that are recommended on that force.
The noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf, queried the involvement of the Lord Chancellor in the appointment process. Obviously, we will return to this. I have sat in on some of the discussions and it certainly is not any kind of power grab by the present Lord Chancellor. In fact, like me, he is rather an enthusiast for the separation of powers. In the discussions, the opinion came from a number of sources that the relationship between the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor was absolutely crucial to the effective working of justice and therefore making sure that they were a cohesive group was very important.
As has been pointed out, at the moment the Lord Chancellor has a veto, which is a pretty large intrusion into any selection process. In these proposals, that veto is dropped and he becomes one of a committee. It will be very interesting to tease this out in Committee. As the noble and learned Lord, Lord Woolf, will confirm, these are not only judicial offices but considerable administrative offices—perhaps they regret it—particularly for the Lord Chief Justice, and their relationships with the Executive and Parliament have to be managed properly to reflect the realities of those relationships. Looking over at the Cross Benches, I can see that noble Lords are keeping their powder dry for Committee.
The noble Lords, Lord Touhig and Lord Ponsonby, raised the issue of the enforcement of fines. The issue of fines enforcement and the vulnerable is important. Fines are a criminal sentence and taxpayers should not be subsidising those who deliberately avoid payment. Under our proposals, if the offender provides accurate means information at the outset of their engagement with the justice system and keeps to the payment plan set out by the court, enforcement action will not take place.
We heard a number of very interesting comments on court broadcasting from the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Mackay, who is much influenced by Scottish experience. Again, let us have a good Committee session on that.
On community sentencing, I would make a virtue of the fact that it is only a holding clause at the moment. It is also an opportunity. We heard my noble friend Lady Linklater and the noble Lords, Lord Ramsbotham, Lord Judd and Lord Dholakia, eloquently putting the case for constructive community sentencing. We are in consultation; this is the opportunity to use that consultation to make that case.
On drug-driving, I draw the House’s attention to the fact that my noble friend Lord Attlee has been here throughout this debate precisely because he is going to cover those clauses in the Bill. He even whispered to me that if any noble Lords wished to nobble him and talk to him before that, he is ready to receive them.
It would only be fair if I said that we could leave other matters to Committee. I understand the concerns expressed by the noble Baroness, Lady Smith, and the noble Lord, Lord Judd, about family visa cases and, again, we will make our case in Committee.
On the timetable that the noble Lord, Lord Elystan-Morgan, asked about, I am afraid that I cannot help. The Bill will be the first steps in the reform of the family court. There are significant changes in store that will take some time to implement, so I cannot at this time give a timetable, but we will do so when we are able.
The noble Lord, Lord Henley, and I look forward to exploring these and other issues in Committee. I believe that this Bill will greatly enhance the national response to serious and organised crime while delivering a swift, more transparent and effective courts and tribunals system. I warmly commend it to the House.
Queen’s Speech
Lord McNally Excerpts(12 years, 1 month ago)
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Lord Cope of Berkeley
That an humble Address be presented to Her Majesty as follows:
“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is my honour to open this, the fourth day of the debate on the gracious Speech. At the outset, I express my sadness that I shall not be faced across the Dispatch Box in future debates on Ministry of Justice business by the noble Lord, Lord Bach. I was very much helped by his advice when I took over from him at the ministry two years ago and we have had a very constructive relationship in the two years since. However, that sadness is tinged with pleasure that my new oppo will be the noble Lord, Lord Beecham. I think that we had already fully bonded during the passage of the LASPO Bill, but I very much look forward to working with him in the time ahead.
I am fully aware, and the House will understand, that noble Lords will not try to cover the waterfront in their contributions today but will prefer to concentrate on their areas of particular interest and expertise. That is fully understood and will greatly benefit the quality of the debate as a whole.
The gracious Speech makes it very clear that the Government’s number one priority is to repair the nation’s finances and to set the economy on the road to sustainable recovery. Financial stability and economic recovery are not ends in themselves. That is why our debate today offers noble Lords the opportunity to voice their views on the kind of society that we want. The gracious Speech announces a number of measures on care and support, on children and families, and on pensions which will shape how we make use of economic recovery in a fair way. In parallel with those issues, we will also cover matters which come more directly within the ministerial responsibilities of my noble friend Lord Henley at the Home Office and of myself at the Ministry of Justice.
I am particularly proud that the Defamation Bill, which started life in this House as a Private Member’s Bill initiated by my noble friend Lord Lester, is part of the gracious Speech. When it receives Royal Assent, it will join a cluster of significant reform measures on the statute book that bear his imprint. The Government, of course, committed in the coalition agreement to review our libel laws in order to protect free speech. I do not think that we are alone in thinking that the law in this area is not currently in the right place. When NGOs and reputable scientists can live in fear of being sued or when wealthy foreign citizens use British courts to silence campaigning newspapers, something is not quite right. A rebalancing is needed so that, on the one hand, freedom of speech and legitimate debate cannot be held to ransom while, on the other hand, people are able to protect their reputation against unfounded slurs.
I hope that the Bill’s measures go a long way towards striking this balance, building on the fine work of my noble friend Lord Lester. They include the creation of new statutory defences of truth, honest opinion and responsible publication on matters of public interest, and the extension of the circumstances in which the defence of privilege is available, including to peer-reviewed material in scientific and academic journals. The potential for trivial claims will be reduced by the introduction of a requirement that a statement must cause serious harm to be defamatory. The Bill will introduce a single publication rule, which will provide protection against repeated claims against the same publisher in relation to substantially the same material. It will also seek to ensure that we have an appropriate libel regime for the internet, by enabling complaints about allegedly defamatory material to be resolved directly with the author, and giving greater protection to website operators and other secondary publishers who act appropriately.
The Bill has had the benefit of extremely detailed and helpful scrutiny in draft by a Joint Committee of both Houses. I pay tribute to my noble friend Lord Mawhinney for the valuable report that his committee produced and to all those who responded to our public consultation. That has helped us to bring forward proposals which, I believe, provide reform where it is needed most and where legislation can make a real difference.
Also within my personal area of responsibility is the Trusts (Capital and Income) Bill. The Bill is being reintroduced into this House under the procedure for uncontroversial Law Commission Bills. It will simplify and modernise the law of trusts in England and Wales by abolishing antiquated rules and removing administrative burdens for charity trustees in particular. In short, it will help to keep trust law up to date for the benefit of the numerous people who are affected by trusts. I hope that this will be seen as a sign that the Government appreciate the work of the Law Commission in updating our laws and are willing to use the fast-track procedures introduced by the previous Government to progress more useful Law Commission work through Parliament.
Beyond those two specific Ministry of Justice measures, our debate today covers three main areas: helping vulnerable children by removing the barriers to them getting support; continuing with structural reform of our state pension system to ensure that people can rely on it while taxpayers can afford it; and protecting the public through reforms to security and justice, without sacrificing our freedoms.
First, we are bringing forward a children and families Bill that will help all parents and remove some of the barriers that prevent those who are more vulnerable fulfilling their potential. Under our plans, parents will be able to take more flexible leave. Mothers will be able to return to work earlier and transfer their maternity leave to help both parents share the burden of childcare. The Bill will also deliver a step change in help for our most vulnerable children. We want to reform the assessment of and provision for children and young people with special educational needs and those who are disabled. Any family whose child has special educational needs knows what a struggle it is to get adequate support. We want to give more choice and control to parents of children and young people with learning difficulties.
We also want to introduce significant reform of the adoption system to reduce endemic delay. It is right that more children are placed in stable, loving homes with less disruption to their lives and we are going to tear down the bureaucracy and red tape that gets in the way.
As well as providing more support for children and more support for parents, we also want to do more to ensure that ordinary people can look forward to security in old age. We have already taken significant steps towards that by increasing the basic state pension by £5.30, the biggest cash increase ever, and restoring the link with earnings. However, we need to do more to give those currently in work greater certainty about what level of income the state will provide in retirement, remove some of the complexity and disincentives that discourage saving and ensure that the system remains affordable.
We intend to bring forward measures during this Session that will entail a fundamental reform of state pensions. The single-tier pension will simplify the current complex and outdated pension system and will provide much clearer incentives for people to make provision for their own retirement. Reforms to the state pension age will ensure that state provision keeps pace with fast-increasing life expectancy. These changes will mean that the state pension system remains sustainable for current and future generations.
Just as we will be doing more to help vulnerable children, we will be bringing forward a draft care and support Bill to provide better support to vulnerable adults. It will modernise care and support law to ensure services are focused on people’s needs; put people in control of their care; and consolidate existing law by replacing provisions in more than a dozen Acts with one single statute. The draft Bill will be subject to pre-legislative scrutiny. I am well aware that the House is not short of experts in the area of social reform, and I look forward to their contributions during the debate.
The measures outlined in the gracious Speech are flagship reforms that will enhance the quality of life of our people. However, quality of life is best assured within a framework of public safety, security and freedom. It is these matters in the gracious Speech to which I turn. The Crime and Courts Bill will protect the public and modernise the justice system. It will do this partly by improving the way in which it is organised, and partly by opening up a closed world.
I turn first to protection. England and Wales have 43 police forces, which usually do a superb job. However, a great deal of serious and organised crime occurs on a scale, and using methods, that puts it beyond the reach of individual forces. It could be cyber-enabled fraud or child exploitation, gangs organising the drugs trade, human trafficking or economic crimes. The Government propose to establish the National Crime Agency to tackle these threats better. This is a step change in our response that will target serious organised and complex criminality, and strengthen policing at the borders. A modern, state-of-the-art agency, operating independently but accountable to the Home Secretary and through her to Parliament, is the next step in structural reform, and the national corollary of the enhanced local focus that police and crime commissioners will provide.
The Bill also adds to reforms to the criminal justice system that the Government began in our first two years. Community sentences are an important part of our penal system, but the current framework does not command public confidence. In the Bill we will legislate to ensure that community sentences punish more effectively and rehabilitate more fully. Consultation is now under way on a new top-end community sentence. Just as we have tried to make prisons more effective at reforming people, these measures seek to make community sentences more effective and more respected by offenders, victims and the public.
The Bill also looks at modernising our courts system. Proposals include establishing a single county court to speed up civil claims, and a single Family Court to end the unacceptable delays in family justice that were identified in David Norgrove’s review. It also opens up the system in a different sense. I believe that the UK has the finest judiciary in the world—one of unrivalled quality, integrity and wisdom. However, no one can rest easy when the demographic make-up of our leading judges, despite progress in recent years, remains far removed from that of modern Britain. The Bill brings forward proposals to increase the number of our judges, especially senior ones, who are women or of ethnic-minority origin, without sacrificing the key principle of selection on grounds of merit. For example, we will introduce measures to facilitate part-time working in the High Court, Court of Appeal and Supreme Court, and to allow positive action to promote diversity where two candidates are of equal merit.
Finally the Bill extends the principle of transparency by removing the legal barrier to the broadcasting of court proceedings. Initially we will allow the broadcast of advocates’ arguments and judgments in the Court of Appeal. It is small step, but one that I hope will help demystify our courts somewhat and make the principle of open justice more meaningful.
As with our social reforms, I believe that the Crime and Courts Bill has the potential to be a great reforming measure. I look forward to guiding it through the House in harness with my noble friend Lord Henley. We start the journey on 28 May with Second Reading.
Finally, I turn to two measures in the gracious Speech that have already been the subject of controversy: I refer to the proposals for closed material proceedings in the justice and security Bill and the proposals for updating the law on communications data under the draft communications data Bill. I expect these proposals to undergo scrutiny in both Houses, and not least in this House, where so much direct experience in these matters resides.
I am well aware that if economic recovery is the Government’s number one priority, defence of the realm remains, as it always is, the first responsibility of Government. In times past that has most often meant making sure our Armed Forces were equipped to undertake military tasks against a defined enemy. In the 21st century, threats come in many different forms and from many different sources. It is essential that the various arms of the state have the powers and ability to meet such threats. It is equally necessary for our justice system to be able to administer justice in a way which is fair for all.
To achieve that, we need informed and balanced debate. That is my hope and the Government’s intention. However, if the approach to these proposals is in similar vein to the editorial in Saturday’s Guardian, which talked of,
“secret justice and a licence for electronic snooping”,
which could “slowly strangle private life” and change,
“the very nature of the courtroom”,
then the kind of forensic examination of these proposals which I hope and expect Parliament to conduct will be lost in a tsunami of overhyped hysteria.
Given their responsibilities, the Government are entitled to have their case heard; for it is a recurring challenge for Government and Parliament to provide the protection that the citizen needs and expects without putting at risk the very liberties which make us a liberal democracy. It is an ongoing dilemma and it is right that whenever the Executive have proposals in these areas, they should be exposed to the most thorough parliamentary scrutiny.
The Government’s case is that, far from preventing the courts and judiciary seeing the evidence, the justice and security Bill seeks to enhance scrutiny of actions undertaken on behalf of the Government. At the moment, where an individual brings a civil claim, sometimes making serious allegations about the activities of the British state and its agencies, the intelligence services have no way of presenting their evidence in court without putting their methods and agents in danger. The consequence is that the Government fold their case, cases go unheard, rulings are not made and justice is not done. It is hardly an ideal situation for those who want to see respect for the rule of law.
What we propose means that many safeguards will apply. In particular, a judge will always take the final decision over whether closed material proceedings are needed and whether individual pieces of evidence may be heard in closed court. The interests of the individual will be represented by a special advocate, and the press will be able to report freely on the open part of the proceedings and any allegations made by claimants. At the same time, we will strengthen the independent and parliamentary bodies responsible for overseeing the security and intelligence agencies, to make them more effective and more credible.
We will extend the powers of the Intelligence and Security Committee, as well as broaden the remit of the Intelligence Services Commissioner and the Interception of Communications Commissioner. The Government hope that when Parliament comes to consider this Bill, it will weigh the evidence and find that these proposals are carefully crafted to address a challenging problem for any democratic Government with proportionality and good sense.
Let me turn to the communications data Bill. This measure too has been subject to much misleading comment. It is not about looking at what people’s e-mails say or listening in to phone calls or creating some kind of Big Brother database. At the moment, records are kept by phone companies about the calls that their customers make. This information has been used by the police and intelligence agencies for years, as a vital resource to identify where a suspect has been and when. To be clear: this is not about the content of the call, just the fact that it has been made.
What the Bill proposes is that the same data are available in the future as in the past. It is not about enhancing the power of the state or changing the balance of freedom. It is an adjustment to stay roughly where we are. However, we have heard the concerns that have been raised and want to get this right. That is why we are publishing this Bill in draft for pre-legislative scrutiny. As well as a Joint Committee to consider the draft Bill, the Home Secretary has invited the Intelligence and Security Committee to scrutinise the provisions that relate to the work of the intelligence and security agencies. This is precisely because we want a wide and full debate, and we look forward to receiving the committees’ reports.
Today’s debate covers many serious matters, and I do not envy the task of my noble friend Lord Henley in crafting his reply. I have never hidden my opinion about the need for this House to reform itself, but neither have I hidden my respect for its collective wisdom and experience. Both today and in the months ahead we will be discussing matters on which the collective wisdom and experience of this House will be called on to the full, and I look forward with genuine interest to the contributions of all who are to take part in the debate.
Phone Hacking
Lord McNally Excerpts(12 years, 6 months ago)
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Lord Maxton
My Lords, Maxton is the name. Why are this Government quite happy, as is Parliament and as previous Governments have been, to regulate television, radio and even the internet but are not prepared to undertake the statutory regulation of the print media?
Children: Secure Children’s Homes
Lord McNally Excerpts(12 years, 7 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am not sure whether it is me or my colleagues in the choice of debates, but I am faced with the same problem I had a few days ago when replying to the debate on magistrates initiated by my noble friend Lord Dholakia; I now have six minutes to reply, rather than 12. However, I make no complaint because this has been a very good debate in which a number of specific issues have been raised. I will reply to all noble Lords on the matters that I cannot cover in this restricted time. The noble Baroness, Lady Gale, will be delighted to know that in a few days’ time, the question of the YJB will be brought back to this House for further debate. She has given me many good warnings that I must be ready to speak about Wales at that time.
I congratulate my noble friend Lady Shackleton on her outstanding maiden speech. I now consider her fully equipped to play a full and active part in the Legal Aid, Sentencing and Punishment of Offenders Bill—LASPOO to its friends—which will be here on 21 November. I expect that she will be getting her name down early to participate in that debate. I have a suspicion that I am going to need all the friends I can find.
As for the speech by my noble friend Lady Linklater, I got what I expected: a thoughtful introduction, full of useful statistics, and based on a deep commitment and wide experience. That is always the daunting thing for me when replying from this Dispatch Box to this kind of debate: that this House brings together great experience on these matters. I can assure the House that I will specifically respond to everything that has been said today, including all the suggestions and questions.
Secure children’s homes play a key role in the provision of suitable secure accommodation for young people on remand or serving custodial sentences. I have a long-standing admiration for the way in which they look after those placed in their care, so let me be clear that the Government remain committed to this sector. Secure children’s homes take children from both the criminal justice system and welfare placements. In respect of children from the criminal justice system, the homes are generally used to accommodate 12 to 14 year-olds; girls up to the age of 16, and 15 to 16 year-old boys with particular needs. As has been mentioned, the key point is that the staff-to-child ratios are good and help secure children’s homes to focus on attending to the physical, emotional, educational, health and behavioural needs of children in their care. It therefore comes as no surprise that nine out of the 10 secure children’s homes inspected by Ofsted this year received a rating of “good” or “outstanding”, with only one rated as “satisfactory”.
A number of noble Lords have talked about the problem of reoffending. The right way to improve public safety and reduce the number of victims is to reduce reoffending. There are a number of ground-breaking initiatives designed to help bring down the reoffending rate. Together with the YJB, we are piloting a number of financial incentive schemes to explore how we can further incentivise local authorities to reduce reoffending. We are setting up and encouraging the expansion of regional resettlement consortia to promote closer working between custodial establishments, youth offending teams and their partners in the voluntary sector. This will provide the opportunity for joint planning and commissioning of resettlement services.
The noble Baroness asked specifically about the work of secure children’s homes in reducing reoffending. Unfortunately, the present reliable statistical data showing the reoffending rate for each type of accommodation used in the secure estate is not a straightforward matter. As we have heard, secure children’s homes range from very small establishments housing only eight young people to larger buildings with a capacity to accommodate 38. Where small numbers are concerned, there is a greater risk that the statistical results may be skewed in exceptional cases. Furthermore, the placement of children in young offender institutions, secure children's homes and secure training centres is based on their needs. The age of the individual is also a factor. As a consequence, it is difficult to make meaningful comparisons across the three types of accommodation and say whether one is better than another.
The safeguarding and welfare needs of all young people admitted to custody are taken extremely seriously across each sector of the secure estate. The placement of young people and their subsequent care are based on an assessment of their needs and risks conducted by their youth offending team and updated in conjunction with staff in the secure estate. These assessments focus on the young person as an individual and the range of factors that may have led to their offending.
Initiatives, such as the Keppel Unit, which was mentioned by my noble friend Lady Linklater, show that we are focused on improving outcomes for young people within the youth secure estate. The Government published their secure estate strategy in July 2011, and the consultation closed on 11 October. The Youth Justice Board is now carefully considering the responses received, so my comments on the future of the secure estate are necessarily curtailed until the consultation response is published early in the new year.
However, it is important that the fall in the number of children and young people in custody has not been distributed equally across all age groups. The biggest decrease has been seen for young people aged between 10 and 14 years old. It is the younger age group that is most likely to be placed in secure children's homes and secure training centres.
I hope this very brief response has reassured the noble Baroness that the Government are fully committed to maintaining the secure children's home sector and to reducing reoffending. In January we will see the outcome of the consultation and will issue our response. I can assure the noble Baroness that we will continue to give the highest priority to those in our care.
Police Reform and Social Responsibility Bill
Lord McNally Excerpts(13 years ago)
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Baroness Scotland of Asthal
No, my Lords, certainly not. I was seeking to relieve the Committee of the burden of listening to me for more than was absolutely necessary, bearing in mind that we are now at 9.19 pm and the Government have yet to respond. Of course, it is for the Government to deal with these matters. I simply wanted to make plain that we on this side would support the analysis made by the noble Lords, Lord Carlile and Lord Pannick, and my noble and learned friend Lord Goldsmith. I thought that that would be the fastest way. I am sure that we can return to this on Report. If the Committee would love to hear from me on that basis, I am sure that I could entertain your Lordships for some considerable time. But, at this time of night, something told me that the Committee would not thank me. For that reason, I have curtailed my remarks. I am sure that the noble Lord, Lord McNally, need have no such restraint.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, sometimes the House throws up, well outside the usual hours of attention, debates of immense importance. There is no doubt that this debate will be read and studied outside the confines of the House to great advantage, because it was extremely thorough, with arguments deployed on both sides with great passion but also, in the tradition of the House, with great courtesy. As one of the non-lawyers participating, I very much benefited from listening to the learned side of the House dealing with matters of law.
Of course, as with all these things, it is a matter of judgment. We get advice from many quarters. It is not a matter of setting the view of the Joint Committee on Human Rights at nil; our judgment is carefully considered. However, as the two former Attorneys-General pointed out, somebody then has to make a judgment. The judgment that we have made is that the purpose of Clause 154 is to ensure that in respect of offences over which the United Kingdom has asserted universal jurisdiction, an arrest warrant is issued on the application of a private prosecution only where there is a real prospect of a viable prosecution. This outcome is achieved by requiring the consent of the Director of Public Prosecutions before the warrant can be issued. The Government have decided that this is the best way forward.
The detail of this debate indicates that more than one opinion can be honestly held, but nothing that I have heard today has dissuaded me from thinking that this is the right way forward. However, we will return to this on Report. I hope that some issues were clarified in the debate. Certainly I will look at the resource issue that was raised by the noble and learned Lord, Lord Goldsmith, the noble Lord, Lord Carlile, and the noble and learned Baroness, Lady Scotland, but I am a little worried about the answer that I will be given—[Interruption.] It is always worrying when there are interventions. It is bad enough when the noble and learned Lord, Lord Mackay of Clashfern, intervenes, but when the thunderous intervention seems to come from an even higher authority, one gets really worried.
I pay tribute to the previous Government on their record on universal jurisdiction. The two officeholders responsible can take rightful pride in it. I also put on record the confidence of this Government in the independence and abilities of the present DPP. The way that the noble Lord, Lord Campbell-Savours, introduced the debate set a tone that encouraged the exchange of honest and informed opinions. Although I will ask noble Lords, given the nature of the Committee stage, not to press their amendments, it is clear that the debate will influence further discussions on how we go forward.
I will deal with some of the issues. The noble Baroness, Lady Tonge, finished her remarks by expressing her concern that there would be unnecessary delay. That concern was also expressed by the noble Baroness, Lady D’Souza. It was answered very clearly by the noble Lords, Lord Carlisle and Lord Pannick. In some ways, I shall try to shorten my remarks because I do not know whether the noble Lord, Lord Pannick, is after my job, but his speech answered many of the questions raised, including on delay. The DPP has made it clear that anyone who wants to pursue a crime of universal jurisdiction should engage very early with him. Giving evidence, he said:
“They should come to us with whatever evidence they have, and we will undertake to look at it and to advise”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 124]
We have already heard evidence about the amount of resources and the 24/7 nature of that coverage.
It is not a matter of trusting the judges to do their job. The noble and learned Lord, Lord Goldsmith, put the problem far better. The actual case put to the judge is not the one that causes the problem in that, as the noble and learned Lord rightly pointed out, it may involve somebody being detained on very spurious grounds. We are all experienced politicians and we have seen examples. The gain for those wanting to raise these issues is not in the trial or the verdict but in the publicity gained by getting the individual into the situation in the first place. As the noble Lord, Lord Phillips, and the noble Baroness, Lady Tonge, suggested, it is not in any way that we wish to take away the right of the private citizen to pursue matters of universal jurisdiction, but simply that we believe that the present situation is unsatisfactory and extremely difficult in terms of law. I know that there have been very few cases but, as the noble Baroness, Lady Ramsay, pointed out and the noble and learned Baroness, Lady Scotland, confirmed, the previous Government were looking at this issue and feared, as do we, that there is a risk that the present weakness of our system could be exploited at a time when we would want to use all our influence.
One accepts the point raised by the noble Baroness, Lady D’Souza, that there may be a chill factor in asking for that hurdle to be cleared. As the noble Lord, Lord Pannick, argued, there may be a deterrence factor. We have had to weigh those things, and we have come down in favour of trying to remove that deterrence factor while not removing the line to universal jurisdiction. We are asking a non-political officer to look at the issue and asking those wishing to take it forward to clear what is in many ways a very modest hurdle if the situation is as clear as they would claim. There is no point in allowing the court to issue a warrant in a case where the director has concluded that there is no realistic prospect of a viable prosecution. That is why we believe that the first three amendments cast the Director of Public Prosecutions in an advisory role to the court, which is not welcome.
Amendment 245 requires the court to apply to the DPP for advice on the advisability of granting a warrant or summons. It goes on to make it clear that such a warrant or summons cannot be issued without taking into account the DPP’s advice. As was acknowledged by those who tabled the other amendments, the thrust of them is to move from giving responsibility to the DPP to putting him in an advisory role. The DPP was clear in his evidence to the Public Bill Committee about the degree of detail in which applications for consent are examined and the specialist resources that are available for him in doing so. If the DPP concludes that the tests under the code for the Crown prosecutors are not met, it is difficult to see what purpose will be served by the court nevertheless issuing a warrant or why it would wish to do so.
Amendment 245AA is obviously intended to place in the Bill the test used by the DPP in considering whether to grant this consent. I will not go into great detail at this point because I would be afraid of rekindling the fire between the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Thomas. But I ask readers of Hansard to turn to those exchanges to judge again whether we have got the balance right. I think that we have. I am not persuaded that it is necessary to embody the guidance in the clause. The tests are of general application but they are not set out in statute and it would be strange to do so in this context.
The amendment in the name of my noble friend Lord Carlile is designed to monitor the arrangements for investigating and prosecuting certain grave international offences and for assisting the International Criminal Court. I understand the interest in reviewing the effectiveness of these arrangements but I am not sure that what is proposed would be helpful. Prosecutions for one of these exceptionally grave offences are rare and when one takes place it is newsworthy enough for a reporting requirement to be superfluous. Investigations that do not end in prosecution are a different matter and reporting on them would not be straightforward.
As the exclusions built in the amendment recognise, it would not be right to disclose personal details, but without such details the information is unlikely to be meaningful. The information that the report provided would therefore be so incomplete as to make it effectively useless. What would be of value would be for the Director of Public Prosecutions to monitor any case for which his consent is sought under Clause 154, which applies to offences that to some extent overlap with those listed in this amendment, and to publish the number of cases and the outcome. I understand that the director would be content to carry this out.
The amendment includes a requirement to report on the assistance of the International Criminal Court. The Foreign and Commonwealth Office produces an annual human rights command paper, which includes details of the UK policy on criminal justice and the rule of law. It is subject to the scrutiny of the Foreign Affairs Committee. The command paper makes clear the UK’s commitment to the principle that there should be no impunity for the most serious international crimes and that we should provide details of the practical support which we have provided to all six existing international criminal tribunals. The paper does not currently provide the level of detail which the amendment would require but the Foreign and Commonwealth Office will give careful consideration to extending it to include more specific details of assistance provided as envisaged by this amendment.
I would ask the noble Lord, Lord Carlile, and the noble Baroness, Lady Tonge, when they have time to look at those two responses, to see whether they are satisfactory. I will be happy to meet with them on these points, but I hope that they go a long way to meet what they say. If not, of course, we can return to this on Report or clarify it further in discussions. I invite the noble Lord to withdraw his amendment, but with real and personal thanks both for the spirit and the level of engagement in this debate which I hope will help to reassure people about where we are coming from. I think that both in this House and in this Parliament there is cross-party commitment to pursuing those who perpetrate horrific crimes that are committed all over the world and which were so graphically described by my noble friend Lady Tonge. As a country, we have been for many years a leader in this, and we will continue to be.
I can make a personal commitment. At the Ministry of Justice and within this Government, I am the Minister responsible for civil liberties and human rights. I would not stand at the Dispatch Box advocating this clause if I did not believe that it was absolutely foursquare with our continuing full commitment to the universal jurisdiction. It is not a step towards political control. It gives us a law that is fit for purpose, a very noble purpose, if we all continue to pursue it.
Lord Campbell-Savours
My Lords, we have had a fascinating debate. It is nearly 10 o’clock and I have not eaten yet, as indeed will be the case for most noble Lords. We have a lot to reflect on before the Report stage, as indeed will many organisations outside this House which have been in contact with Members. Before I withdraw the amendment, I should say that I remain slightly confused about the public interest. That is where the suspicion may well lie, and as I understand it, explanations as to what constitutes the public interest in particular cases are not published. With that in mind, the responses of the noble Lord, Lord Pannick, to my interventions may well be of interest to a number of organisations. I beg leave to withdraw the amendment.
Crime: Media Reporting
Lord McNally Excerpts(13 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I think that we shall take a question from the Cross Benches and then from the noble and learned Lord.
Lord Lloyd of Berwick
My Lords, in high-profile cases, as I am sure the Minister knows, the police are often under great pressure from the press and others to make an arrest. Does she agree that it is all the more important in such cases that the police should be scrupulous in applying the test of reasonable suspicion, which is an objective as well as a subjective test?