Crime and Courts Bill [HL]
Lord McNally Excerpts(11 years, 5 months ago)
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Baroness Butler-Sloss
My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.
Baroness Butler-Sloss
I understood it not to be annual but to be periodic. Annual would be too frequent.
Lord McNally
Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.
We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.
As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.
Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.
The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.
However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.
In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.
In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.
The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.
Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.
The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.
Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.
I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.
Lord Beecham
My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.
In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.
Lord McNally
My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.
While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.
As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.
The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.
We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.
I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.
I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.
For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.
Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—
Lord McNally
If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.
Lord Beecham
I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.
I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.
Lord McNally
Baroness Hamwee
My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.
Lord McNally
My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.
We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.
The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.
These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.
Lord Beecham
If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.
Lord McNally
That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.
This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.
Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.
As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.
I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.
I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.
We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.
I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.
Lord McNally
“Gang-related injunctions: further amendments1 Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
2 After section 46A insert—
“Appeals46B Appeals against decisions of youth courts
(1) An appeal lies to the Crown Court against a decision of a youth court made under this Part.
(2) On an appeal under this section the Crown Court may make—
(a) whatever orders are necessary to give effect to its determination of the appeal;(b) whatever incidental or consequential orders appear to it to be just.(3) An order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a youth court) is to be treated for the purposes of section 42 as an order of a youth court.”
3 In section 48 (rules of court in relation to injunctions under Part 4)—
(a) in subsection (2) (rules of court may provide for appeal without notice) omit “of the High Court or county court”, and(b) in subsection (3) (decisions to which subsection (2) applies) for “applies to a decision” substitute “applies—(a) to a decision under section 39(4)(a) that an application without notice be dismissed, and(b) to a decision”.4 In section 49(1) (interpretation of Part 4) after the definition of “court” insert—
““judge”, in relation to a youth court, means a person qualified to sit as a member of that court;”.5 In paragraph 1(2) of Schedule 5 (courts’ powers to remand person suspected of breaching injunction: meaning of “the court”)—
(a) for “High Court or” substitute “High Court,”,(b) before “and includes” insert “or a youth court”,(c) omit the “and” following paragraph (a), and(d) at the end of paragraph (b) insert “, and (c) in relation to a youth court, a judge of that court.”6 Schedule 5A (breach of injunction: powers of court in respect of under-18s) is amended as follows.
7 (1) Paragraph 1 (power to make supervision order or detention order) is amended as follows.
(2) In sub-paragraph (1) (pre-conditions for making of supervision order or detention order)—
(a) in paragraph (a) for “is” substitute “has been”,(b) before the “and” after paragraph (a) insert—“(aa) the person is still under the age of 18,”,(c) in paragraph (b) for “the court” substitute “a youth court”, and(d) in the words following paragraph (b) for “the court” substitute “that court”. (3) Omit sub-paragraph (3) (power to grant supervision order or detention order is in addition to any other power of the court in relation to breach of injunction).
(4) In sub-paragraph (9) (interpretation of Schedule 5A) omit the definition of “appropriate court”.
8 In paragraph 4(11) (appropriate court may amend activity requirement in supervision order) for “the appropriate” substitute “a youth”.
9 In paragraph 5(5) (appropriate court may amend curfew requirement in supervision order) for “the appropriate” substitute “a youth”.
10 In paragraph 6(7) (appropriate court may amend electronic monitoring requirement in supervision order) for “the appropriate” substitute “a youth”.
11 In paragraph 8 (amendment of operative period of supervision order)—
(a) in sub-paragraph (1) (appropriate court may amend operative period) for “The appropriate” substitute “A youth”, and(b) in sub-paragraph (2) (court may make other amendments when amending operative period) for “The court may,” substitute “A youth court may,”.12 In paragraph 9(1) (change of area of residence of person subject to supervision order) for “the appropriate” substitute “a youth”.
13 In paragraph 10(1) and (4) (application for revocation of supervision order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.
14 In paragraph 12 (non-compliance with supervision order)—
(a) in sub-paragraph (2) (injunction applicant may apply to appropriate court on being informed of non-compliance) for “the appropriate” substitute “a youth”,(b) omit sub-paragraph (5) (no power to make further order if defaulter is aged 18 or over), and(c) omit sub-paragraph (6) (powers to revoke supervision order etc are in addition to any other powers of court in relation to breach of supervision order).15 In paragraph 15(1) and (4) (application for revocation of detention order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.”
Lord McNally
My Lords, it is perhaps a matter for a more than modest celebration. There was a time at the beginning of this debate when a former Law Lord, a former Lord Chief Justice, a former Lord Chief Justice of Northern Ireland and a former President of the Family Division had all spoken in quick succession to oppose this, and I thought, “My goodness, I’m in trouble here”. But then, over the hill like the 7th Cavalry, came the noble Lord, Lord Pannick, which is not a position he always occupies when viewed from these Benches.
This has been an interesting debate. Of course we have to listen carefully to the experience of those who have occupied senior judicial positions when we discuss a matter such as this. I shall make one or two points on the points made. The noble Baroness, Lady Warnock, called in evidence the teaching profession. I do not have experience of the teaching profession, so she can make her point, but over the past two and a half years I have had experience of the senior Civil Service, and I can compare it to when I had direct experience of the senior Civil Service in the mid-1970s. I have made the point before at this Dispatch Box: the thing that I notice most about the senior Civil Service now is its diversity, in both ethnicity and gender. Quite honestly, I do not know whether the senior adviser who is giving me advice is working flexibly or part time, and I do not really care. It is the quality of what they give. I do know, because they tell me, that because of the flexibility that has been introduced into the senior Civil Service many more women have been able to remain and to climb the ladder within the senior Civil Service. That has to be weighed in evidence in any comparison with other professions.
I also point out that, as the noble Lord, Lord Pannick, said, the powers we are seeking are permissive, not mandatory. That is an important point. I am very grateful to the noble Lord, Lord Beecham, for his intervention. He explained very carefully the interplay between flexible and part-time. I was also pleased by the intervention of the noble Baroness, Lady Neuberger. In weighing the serious evidence that was produced by the experienced former members of the judiciary, it is worth remembering that both the inquiry chaired by the noble Baroness, Lady Neuberger, and the Constitution Committee, of which the noble Lord, Lord Pannick, was a member, came down in favour of what we are trying to do.
As the noble Earl, Lord Listowel, indicated, there is general acceptance of the importance of part-time and flexible working to promote greater diversity in our modern society. The Government firmly believe that this is as true of the senior judiciary as it is of other areas of employment. These amendments would prevent us extending the benefits of flexible working to the Supreme Court and the Court of Appeal. The Government believe that the introduction of part-time working—
Lord McNally
I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.
Baroness Butler-Sloss
I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.
Lord McNally
No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,
“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.
Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.
There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.
Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.
The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.
Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.
Lord Mackay of Clashfern
For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?
Lord McNally
My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.
Lord Lloyd of Berwick
My Lords, I found the Minister’s reply very unsatisfactory because it seemed to me—I hope I am not saying what I should not—that much of his brief was written before he realised what point I was going to make.
Lord McNally
Half my remarks were made on notes that were there. The noble and learned Lord has now pressed for two full debates on whether “flexible” and “part-time” are interchangeable or whether one over-rides the other. I and the noble Lord, Lord Beecham, in an act of unity, having tried to explain—there is nothing in the brief on it—I continue to puzzle about why the noble and learned Lord cannot see the interchangeability of the two. I have also got his note, the billet-doux he left me last night, which further pressed the case, but a large number of people, whose opinions I express, do not find the confusion that he does about the two terms.
Lord Lloyd of Berwick
All I can say by way of reply is that nobody except the Minister and the noble Lord, Lord Beecham, regards flexible and part-time work as being interchangeable. They clearly are not. One is one thing and one is another. If the Bill were to take effect, one would have to calculate at some point how many part-time members, as it were, occupy the time of the Supreme Court, and how many full-time members. The thing is simply impractical on the basis of salaried part-time members who would be paid less than full-time members. Those are simply the financial impracticabilities, but there are also all the other impracticabilities that have been pointed out by other Members who have spoken. It would simply be, as has been said more than once, a nightmare to work out in practice. It would raise expectations which I suspect that we all know would never be fulfilled.
It would be so easy for the Minister, consequent on all the things that were said in Committee as well as by other speakers today, to substitute “flexibility” for “part-time” working. Then we would all agree. The suggestion made that these are two ways of looking at the same thing, in my respectful submission, simply makes no sense. But obviously I am not going to persuade the Minister, and I suspect that the Opposition will take the view that they have indicated that they will take. I regret it very much. However, for the reasons that I have tried to give, I seek the opinion of the House.
Lord Beecham
My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.
I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:
“These duties shall continue for five years, but may be extended for five year terms by order”,
relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).
Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.
I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.
Lord McNally
The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.
I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.
I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.
I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.
I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.
Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.
Lord Marks of Henley-on-Thames
My Lords, everyone in this House knows that the commitment of the Minister to judicial diversity is very high, and I am grateful for his indication that he will consider this. I should say that I do not accept that the Equality Act deals with the position in the Supreme Court as satisfactorily as it has been suggested it might. The Bill should reflect uniformity all the way up the system. With the indication that my noble friend has given, however, I will of course withdraw the amendment and consider the matter with him between now and Third Reading.
Lord McNally
Baroness Seccombe
My Lords, as a former magistrate, I support all the sentiments of the noble Lord, Lord Beecham. He has expressed the great fears of the magistracy that it is gradually becoming more and more centralised and that the point of local justice is disappearing. The thing that I have a little trouble with is how that fits into this Bill at this time, and I should be very interested to hear what the Minister has to say on this.
Lord McNally
My Lords, I am grateful for the contributions from the noble Lord, Lord Beecham, and the noble Baroness, Lady Seccombe. Both have made important points about the concept of local justice and the massive boon that comes from a magistracy rooted in its locality and with a knowledge of the problems of an area and, indeed, of the people of an area. In previous debates I have given a run-out to the names Tommy Croft and Billy Quinn. They both worked in the local ICI works near to where I was born and they were both local magistrates. Everybody knew them and everyone, particularly the youth of the locality, dreaded appearing before them. That is the kind of benefit that we get from a magistracy which is rooted in its locality. But, alas, that was 50 years ago. Both my noble friend Lady Seccombe and the noble Lord, Lord Beecham, are right to say that, in our drive for various efficiencies and for uniform high quality, we must ensure that we do not squeeze out the benefit that we get from a lay magistracy. The magistracy performs a vital role in our justice system and the Government are highly supportive of both lay magistrates and full-time district judges sitting in magistrates’ courts.
In our White Paper, Swift and Sure Justice, we restated our view that the lay magistracy is one of our most important assets. The White Paper also sets out proposals to give magistrates new roles and responsibilities. We are currently working through the responses that we received and we will confirm our plans in due course.
I fully understand the request by the noble Lord, Lord Beecham, for information on the composition of this crucial element of our judicial system. I am delighted to confirm that official data from the Judicial Office are already publicly available on the judiciary website. That includes not only information on the number of lay magistrates in each of the 47 advisory committee areas and the name and number of district judges sitting in magistrates’ courts but also detailed information on gender, age, ethnicity and disability. Those data are published annually on 1 April. The number of lay magistrates in post as of 1 April 2012 was 25,155; the number of district judges sitting in magistrates’ courts was 141, with 134 deputy district judges. Perhaps I can illustrate the level of detail to which this information goes: 51.3% of lay magistrates and 29.1% of district judges were female; 53.9% of lay magistrates and 35.4% of district judges were 60 or over; 4.5% of lay magistrates identified themselves as having a disability; and 8.1% of lay magistrates and 2.8% of district judges were from black and minority ethnic groups. There is even more detail on the website, should noble Lords wish to visit the relevant links.
Given the extensive amount of official information on the composition of the magistracy already in the public domain, I suggest that a requirement for the Lord Chancellor to lay a periodic report before Parliament is unnecessary. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Beecham
I am very much obliged to the Minister for that information. I am a little surprised that it did not find its way into the Answer to my parliamentary Question some time ago. It is reassuring that that information is available. I shall withdraw the amendment, but I would like to ask whether there is any indication of, for example, employment categories or, frankly, class, although that may be asking too much; it may be difficult to get. I take it that the Minister would wish to promote diversity and look into the concerns that the noble Baroness and I both raised about the role of the lay magistrate in general. I gather that he is sympathetic to that. Therefore, without seeking to incorporate this into the Bill, perhaps he could undertake to have a look at that departmentally and perhaps in conjunction with, say, the Magistrates’ Association and the Magistrates’ Clerks Association, if that still exists, as a matter of government policy rather than legislation. In the circumstances, I beg leave to withdraw the amendment.
Lord McNally
“Justice of the Peace appointed under section 10(1) of the Courts Act 2003 (justices of the peace other than District Judges (Magistrates’ Courts))”
Lord McNally
Lord McNally
My Lords, I shall come clean with the House. Earlier, overtaken by the excitement of getting government amendments through, my noble friend Lord Taylor nodded through government Amendment 83, to which I was supposed to speak. It is grouped with Amendment 93, which gives me the opportunity to catch up with it. This allows me to make a concession which was argued with some passion by the noble and learned Lord, Lord Falconer, in Committee, about the provisions enabling the Lord Chancellor to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court’; sadly, the noble and learned Lord was here for only a fleeting moment.
In Committee, these provisions were a matter of considerable concern to many of your Lordships. Although I thought that I defended the position with considerable persuasiveness, the Lord Chancellor decided, the brief says here, that we have carefully considered the arguments that were put forward at that stage as well as those set out in the reports of the Constitution Committee and the Joint Committee on Human Rights. The amendments respond to those concerns by removing from the Bill those provisions relating to the Lord Chancellor’s ability to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court. Thanks to the noble Lord, Lord Taylor, we have already agreed Amendments 83, 84 and 85 in this group and I am now using this opportunity to move Amendment 93 and to speak to Amendments 97 and 98. I hope that the House will find this acceptable.
In view of the importance of the roles of the Lord Chief Justice and the President of the UK Supreme Court to the administration of justice, we remain of the view that the Lord Chancellor should have a role in these senior appointments. Accordingly, while we will revert to the existing arrangements in that the Lord Chancellor will not sit on the selection panel but will decide whether to accept the selection, reject it or ask the panel to reconsider its selection, we intend to augment these to ensure that the Lord Chancellor is engaged earlier in the selection process. Taking on board the comments raised in Committee, we now propose that the selection panel consults the Lord Chancellor during the selection process. This already occurs in relation to Supreme Court appointments but will be new in relation to the appointment of a Lord Chief Justice.
We have shared the draft indicative regulations with noble Lords relating to the appointment process and these provide for this consultation by the panel in relation to all appointments to the Supreme Court and to certain senior judges in England and Wales, such as the Lord Chief Justice and Lords Justice of Appeal. In addition to this, we will, as I have said, restore the current position whereby the Lord Chancellor will receive the selection panel’s report and, in the light of that, decide whether to accept or reject the panel’s recommendations, or alternatively ask the panel to reconsider its recommendation. I hope that noble Lords will agree that this approach now establishes an appropriate mechanism for the Lord Chancellor’s views to be heard, while safeguarding the impartiality of the selection process. I beg to move.
Lord Pannick
I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.
Lord McNally
“( ) provide for section 16(2)(a) or (b) not to apply in relation to functions of the Lord Chief Justice—(i) as a member of such a panel (including functions of chairing such a panel), or(ii) in relation to the nomination or appointment of members of such a panel;”
Lord McNally
(a) for “judicial office holder (as defined in section 109(4)” substitute “senior judge (as defined in section 109(5)”, and(b) ”
Lord McNally
Lord McNally
My Lords, because I have three amendments in this group it may be helpful if I intervene now. I will, of course, respond at the end of the debate to the points that are made.
I pay tribute to the noble Lord, Lord Touhig, who has a personal commitment to and involvement in this area. I found our recent meeting extremely useful. On fee levels, I am advised that it is normal practice at this stage of the legislative process not to set fee levels. It is certainly not unprecedented. Perhaps I may also take up the point the noble Lord made in closing. We are talking about fines imposed by the court. There is a responsibility on the offender to pay those fines and a responsibility on the Government to put in place a means of collecting them. It is also important that we look at making affordable financial penalties so that they do not produce the devastating impact that the noble Lord referred to.
The Government take the view that the recovery of collection costs provided for in Clause 21 differs greatly from means-tested fines. A fine is a financial penalty imposed by the court as punishment for a criminal offence. The level of fine is based on the seriousness of the offence and the offender’s ability to pay. On the other hand, collection costs are administrative charges which would apply only as a means of recovering the costs of collecting a fine following a default. They are not intended as a further punishment. The collection costs will be proportionate and have a direct correlation to the actual costs of collecting the unpaid fine. To introduce a means-tested charge, as the noble Lord suggests, would create a complex and resource-intensive administrative system which would increase the operational costs, thus leading to increased collection costs overall.
The Government are doing everything they can to ensure that individuals avoid defaulting in the first place and that fines are not set at a level that is inappropriate and unaffordable. We all agree that fines set at the wrong level are to no one’s benefit. The House should be aware that fines officers have the powers to determine payment plans to help individuals manage their fine payments. Furthermore, we introduced amendments to the Bill in Committee which enable the sharing of data between government departments—primarily Her Majesty’s Courts and Tribunals Service, the Department for Work and Pensions and Her Majesty’s Revenue and Customs—for the specific purpose of ensuring that fines and other financial penalties are set at the right level in the first place.
The additional charge to meet collection costs is avoidable. If a person maintains contact with the court and is complying with the payment plan or pays on time as ordered, they will face no extra costs. I re-emphasise the importance of offenders engaging with the justice system from the onset, particularly if they may have difficulty in paying the fine immediately. It must be remembered that should an individual suffer hardship, they can have their case referred back to the court, which can remit all or part of the collection charges. This provides a strong safeguard. However, it must not be forgotten that ultimately it is the offender’s obligation and responsibility to comply with a court order.
The noble Lord, Lord Touhig, questioned whether it was right to bring forward legislation without setting out the proposed collection costs structure. It is perfectly correct for Parliament to agree the principle of collection costs before the exact costs are finalised. As I said earlier, the collection costs will relate to the direct costs of enforcing an unpaid fine. Therefore, until we commence the procurement tender for fine collection services and see the proposals and costs of the bids, we are unable to give an indication of what the exact collection costs will be. However, I can assure noble Lords that companies will not be able to charge disproportionate fees in order to make a profit and we will publish a revised impact assessment before commencing these provisions.
Government Amendments 110 and 123 create new powers for Her Majesty’s Courts and Tribunals Service to access data held by Her Majesty’s Revenue and Customs for the purpose of enforcing outstanding financial penalties. These new powers will complement those that I have already described in relation to data sharing prior to sentencing. These measures will help Her Majesty’s Courts and Tribunals Service enforce unpaid fines and compensation orders by allowing the courts to obtain additional information on defaulters for more effective and targeted use of attachment of earnings orders.
Under the Courts Act 2003, courts are already able to access an offender’s social security information from the Department for Work and Pensions if the offender has defaulted on the payment of their fine or compensation order and the court is trying to enforce payment. The government amendment will extend these data-sharing arrangements to cover information held by Her Majesty’s Revenue and Customs—for example, earnings from employment.
Amendment 115 makes a technical amendment to Schedule 16 to ensure Her Majesty’s Courts and Tribunals Service can access the full range of information held by the Department for Work and Pensions for the purposes of sentencing an individual.
We treat data protection extremely seriously and, like all our other data-sharing provisions, these provisions are subject to rigorous safeguards. Accordingly, data will be shared only with authorised individuals in Her Majesty’s Courts and Tribunals Service, which may use the information only for the purpose of enforcing an unpaid financial penalty. If the information is supplied or disclosed for any other purpose, with certain specific exceptions, the person supplying the data will be guilty of a criminal offence punishable by up to six months’ imprisonment. The Information Commissioner’s Office has been consulted and has welcomed the proposals on the basis that access to shared data will be limited and will be used for specific purposes. I hope that enables a more rounded debate.
Lord Beecham
My Lords, I also strongly sympathise with my noble friend’s amendment, in particular in connection with his reference to the cost of collection. I suspect we will return to that issue when the noble Baroness, Lady Meacher, moves her amendment in relation to bailiffs, because, as was mentioned in Committee and no doubt will be mentioned again today, the cost of collection is often wholly disproportionate to the amount of the fines, particularly when it is in the hands of private firms contracted to either local authorities or the courts. It is quite a different matter when the courts have their own collection services run by their own staff.
There will be considerable concern about the potential direct costs, and the indirect costs, if families are driven further into poverty and we have the problems of homelessness, children being taken into care and the like. It seems that the Government’s intention to outsource this work is likely to aggravate what might be a difficult problem in any event. Clearly, the Government are not going to make any further move on this. That is a matter for regret and certainly something that we will have to keep a collective eye on in future, particularly the likely impact on local authorities if things go wrong and families are unable to maintain the costs.
It is perfectly true that those who receive a financial penalty are obliged to pay it, but the likelihood is that it will not just be them who suffer but their dependants. That has financial as well as social implications. I had hoped that the Government would react rather more positively to my noble friend’s amendment but it does not look as if that is likely to happen. That is a matter of regret and it will be for my noble friend to decide whether he tests the opinion of the House at this very late stage. I suspect he may well not do so, but the issue will not go away. We will undoubtedly want to probe whatever arrangements are ultimately made with those who will be responsible for making these collections.
Lord McNally
My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.
I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.
I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.
As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.
These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Lord Touhig
My Lords, when the Minister came to the Dispatch Box straight after I spoke, I did feel a sense of excitement—I thought he was going to accept my amendment. I thought, “My goodness, there is another Christmas card I will have to send this year”. I am disappointed that the Government do not feel able to support this perfectly reasonable amendment. I fully understand the point the noble Lord makes and I share the view that people who commit offences and are fined should pay those fines. However, I am sure that nobody in this Chamber knows the level and degree of poverty that the people we are talking about tonight experience. The fines might not be a large amount to us but £15 is two weeks’ electricity for a poor family. I fully accept that those who commit the crime should pay the penalty but it is their children and other dependants who ultimately pay the price and suffer far more, perhaps, than the people who are brought before the courts.
I welcome the noble Lord saying that there will be a further impact assessment. Perhaps I may tease him with this idea. Is he prepared to have some discussions about what could be included in that impact assessment? Those of us who have concerns, such as the noble Earl, Lord Listowel, and others, might be able to suggest what should be looked at. In that way, we might arrive at better legislation that will not make victims of the children and dependants of people who commit these crimes, who are innocent in all these matters and will have a more difficult life as a result.
Lord McNally
As I said in my opening remarks, I know how deeply concerned the noble Lord and the noble Earl, Lord Listowel, are about these matters. I would be glad to have further talks with them on what is to be covered by an impact assessment.
Lord Touhig
What can I say? I am most grateful to the Minister and he will certainly be on my Christmas card list. In view of the lateness of the hour, I do not intend to test the opinion of the House at this stage. I am most grateful for the comments made in the debate and I beg leave to withdraw the amendment.
Civil Legal Aid (Merits Criteria) Regulations 2012
Lord McNally Excerpts(11 years, 5 months ago)
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Lord McNally
That the draft Regulations laid before the House on 29 October be approved.
Relevant documents: 10th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in moving the draft Civil Legal Aid (Merits Criteria) Regulations 2012, I shall speak also to the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The Civil Legal Aid (Merits Criteria) Regulations 2012 set out the merits criteria both for applications within the scope of the civil legal aid scheme, which are described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and for exceptional funding cases that fall outside that schedule.
The merits criteria are those that the director of legal aid casework must apply in deciding whether an individual qualifies for civil legal services. When the director delegates his functions under the regulations to providers or his employees, they will also be required to apply these criteria. The criteria include both general merits criteria and specific merits criteria. Specific merits criteria are applied for particular types of case where the general criteria are considered to be too strict or where bespoke criteria are appropriate for particular types of case.
Noble Lords may be aware of the funding code created under Section 8 of the Access to Justice Act 1999. These regulations replace that funding code. The funding code criteria are based on a list of factors set out in Section 8 of the Access to Justice Act 1999. These include the importance of the case to the client, the prospects of success and the likely costs. The regulations before us are based on a list of similar factors set out in Section 11(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The criteria must also reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings. I hope that this is a principle we all share. Our approach in making these regulations has been broadly to retain the existing merits criteria. In our consultation on legal aid reform we consulted on one significant change to the current funding code criteria; namely, that legal aid will be refused for any individual case which is suitable for a conditional fee agreement or CFA. That is reflected in Regulation 39(b).
At present that funding code requirement is disapplied for judicial review cases, claims against public authorities and claims for clinical negligence. We have removed these exceptions. We believe that our limited resources should not be focused on cases where alternative options for funding exist. The Legal Services Commission, or the Legal Aid Agency as it soon will become, has significant experience in determining whether a CFA is likely to be a real alternative. If funding is refused on this basis, an applicant can ask for a review of that decision. If they still are not satisfied, they can seek an independent appeal.
The noble Lord, Lord Pannick, has tabled a regret Motion regarding Regulation 53(b). This states that the regulation will substantially reduce the availability of legal aid in public law cases because the word “reasonable” has been omitted in relation to other means of challenging the relevant decision. I am assuming that this is in comparison to Regulation 39(d), which raised concern in the House of Commons.
Let me first explain what this regulation provides. Regulation 39(d) concerns alternative dispute resolution, such as complaints systems which might allow the client to resolve the dispute without issuing proceedings. The director has a wide discretion to decide whether such alternatives are reasonable in the circumstances. This criterion applies to public law, as well as other claims.
By contrast, Regulation 53(b) is about alternative routes to address the problem predominantly through proceedings. No concept of reasonableness is needed here because if there is an alternative route to resolving the problem in proceedings, that should be taken. This is because judicial review should be a tool of last resort. We recognise that the equivalent provision in the current funding code may on its face appear wider. However, in accordance with its published guidance, the Legal Services Commission has in practice applied this provision so that if there is an alternative appeal or procedure that addresses the problem, legal aid will not be granted for judicial review. Regulation 53(b) therefore reflects current working practice.
The Government made clear in Committee in the House of Commons that if pursuing an administrative appeal or other procedure meant that the individual could not obtain the remedy they needed, the director of legal aid casework would have the flexibility to fund. This is because the regulation specifically refers to alternative routes that “are available”. The director would need to interpret this in a realistic way. Where the director of legal aid casework found that alternative proceedings could not provide the remedy that the client needs, funding for a judicial review would not be refused under this criterion. I stress that this point would be put beyond doubt in published guidance.
However, the noble Lord, Lord Pannick, and others have expressed concerns about this matter, and others have expressed very strong anxieties about how we have framed this provision. I am not convinced that such anxieties are justified, but I will listen to what noble Lords have to say and see if, in my reply, I can move further to meet those anxieties and concerns.
I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The noble Lord, Lord Bach, will speak to his Motion shortly, but I would like to explain first what the order does. This order makes legal aid available in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. It also brings into scope certain applications as required by the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Finally, it addresses a technical issue in relation to legal aid for judicial review.
The first aspect of the order makes available advice and assistance in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. This follows a commitment made by the Government during Commons consideration of Lords amendments of the then LASPO Bill to explore whether there was a way for independent verification to be used to identify any First-tier Tribunal welfare appeals which involved a point of law.
Of course, appeals to the First-tier Tribunal on welfare benefits matters are appeals against an administrative decision of a public authority. This is quite different from an appeal to the Upper Tribunal, where one must identify an error of law arising from the decision made by the First-tier Tribunal in order to bring the appeal. To appeal to the First-tier Tribunal, the appellant need only set out their reasons for disagreeing with the public authority’s decision in plain language. I understand that many appellants will wish to question whether the public authority has applied the law correctly. But this is precisely the job of the tribunal: to decide what the correct facts are and how the law should be correctly applied to them.
The Motion of the noble Lord, Lord Bach, against this order suggests that the Government have not fulfilled the undertaking given during the passage of the then LASPO Bill in this area. The then Lord Chancellor said at that time that he would “explore the options” available for a system of independent verification. I repeated the same assurances to this House, stating that we were,
“committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law”.—[Official Report, 23/4/2012; col. 1557.]
That is exactly what we have done. We have given very serious consideration to the various options for independent verification. We have come to the conclusion that imposing an additional task of verifying whether a case involved a point of law on either the judiciary of the First-tier Tribunal, the successor to the Legal Services Commission or the Department for Work and Pensions would be unworkable. This is because it would have resulted in significant extra administrative and cost burdens. We do not consider it right to impose these burdens in the current economic climate.
It is also important to remember that legal aid will not be limited to welfare benefit cases in this area only. We have retained legal advice and assistance for appeals under the Equality Act 2010. We have retained legal advice and assistance for reviews before the First-tier Tribunal, as I indicated. We have retained legal advice and assistance for applications for permission to appeal to the Upper Tribunal. We have retained legal advice and assistance for substantive appeals in the Upper Tribunal. We have retained legal advice, assistance and representation for onward appeals to the Court of Appeal. We have retained legal advice, assistance and representation for onward appeals to the Supreme Court. We have retained legal advice, assistance and representation for welfare benefit judicial reviews. It is important to stress that at no point in progressing our legal aid reforms did we say that it was our intention for all welfare benefit First-tier Tribunal appeals to receive legal aid. The Government’s position throughout has been that in these economic times we need to target legal aid at cases of the highest priority, where it is needed most. That was what the LASPO Bill was about. This is what we have done.
I turn briefly to the second aspect of the order, which brings into scope certain applications to meet our international obligations under the Hague Convention 2007. The convention sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance, and there are reciprocal arrangements for signatory countries. We expect it to come into force in April next year. The convention is broadly equivalent to the EU maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. Most countries that have signed up to the convention will already be covered by the EU maintenance regulations—with a few exceptions, such as Norway.
The third part of the order addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few specific exclusions. That remains our position. It is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament. However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1, despite the exclusions in paragraph 19. This order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and that the specific exclusions have the intended effect. I hope that this explanation has been helpful and I commend the orders to the House. I beg to move.
Amendment to the Motion
Lord McNally
I heard that as well. I am very grateful for the contributions to this debate and not least for all the free legal advice I have been given. It has been a useful debate and I have listened very carefully to the points made. A number of noble, and indeed noble and learned, Lords have raised the issue of judicial review. The difference is in approach between Regulations 53(b) and 39(d).
As I said earlier, the Government believe that the current drafting of Regulation 53(b) meets the concerns raised both here and in another place. However, having listened to the arguments that have been put forward today, I recognise the strength of feeling that the regulation has provoked. I make it clear at the outset that it has never been our intention to cut off legal aid for all judicial reviews. The noble Lord, Lord Beecham, was just setting a hare running about other plans for judicial review. In our view, this provision has been misunderstood.
That said, I have heard the anxieties that have been forcefully expressed about this provision. In the light of that, I believe we should put the situation beyond doubt by setting it out in the regulation. Therefore, having listened carefully and having consulted with colleagues, I can tell the House that, once these regulations are made, the Government will bring forward as soon as practicable, and in any event well before April 2013, amending regulations to revise Regulation 53(b). These regulations will introduce discretion into Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would not be effective in providing the remedy that the individual requires. This would clearly address the situations that are causing noble Lords concern. It would, for example, put beyond doubt that legal aid for judicial review would be available where the claimant required urgent interim relief and this could not be provided in any other way.
I hope this will meet the concerns of the noble Lord, Lord Pannick, my noble and learned friend Lord Mackay of Clashfern, and others. Indeed, we will have the time to consult noble Lords about the wording of the amending order that I will bring forward in the new year. I hope that in the light of that the noble Lord will not press his regret Motion.
Lord Reid of Cardowan
My Lords, for those of us who have experienced neither legal training nor legal practice but who have listened to the very articulate and understandable critique by many noble and learned friends, can the Minister answer this question for me? I very much welcome what he has said. Is it implicit in what he says that, whatever discretion is given, it will not only come into effect if the First-tier Tribunal decides that it has made an error in law? That was explicit in many of the critiques which have come out. Is that conditionality now removed?
Lord McNally
My Lords, I, too, am not a lawyer. I think that the noble Lord is asking what comes next, and that relates to the second order, not the first one, which the noble Lord, Lord Pannick, asked about. I will try to cover the point which he has raised when I get to that.
As I said, there was never any attempt on our part to change the rules as far as judicial review was concerned. However, when a former Lord Chancellor, a former Lord Chief Justice and a former Attorney General tell you that it needs clearing up, I think it is only wise to see whether it can be cleared up, and that is what we will do.
Moving on, I have explained in detail how we have listened to the concerns of this House—in particular, in extending legal aid in welfare areas. I have never hidden the fact that the LASPO Bill was a very difficult Bill involving some difficult choices. I can remember answering questions at this Dispatch Box two years ago, when we first launched the consultation. I said then that, if you have a system which is targeted to help the poorest and most disadvantaged in your society and you are forced to make cuts in that system, you are going to affect the poorest and most disadvantaged in your society. I have never hidden that fact.
The idea that LASPO was nothing other than a very difficult Bill is again before this House. Many of the arguments that have been deployed tonight were deployed during the passage of that Bill. However, I remind this House that the LASPO Bill is now an Act that went through both Houses of Parliament and carries with it financial implications that have to be considered when discussing any changes to it. There is no infinite pot of money available and we have to think very carefully about how taxpayer-funded money is spent. The Bill was therefore designed to ensure that public funding remains available for the most serious cases and for those who need it most. In making hard decisions and tough choices, we have listened to the concerns of some of the very same Peers who have spoken today, and we made changes during the passage of the LASPO Bill.
Not for the first time, the noble Lord, Lord Bach, claims that the Government have not listened. I take this opportunity to set the record straight. I remind the House of the Government’s original proposal following the consultation on Proposals for the Reform of Legal Aid in England and Wales. Our response to the consultation stated that,
“it remains the Government’s view that legal aid should be removed for welfare benefits cases, as proposed in the consultation. However, it will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to a contravention of the Equality Act 2010 that are currently funded, as proposed in the consultation”.
That was our starting point. Since then, we have moved considerably from that position in response to arguments deployed in both Houses. During ping-pong on the LASPO Bill, having listened carefully to the arguments, we agreed to make available legal aid for advice and assistance for welfare benefit appeals on a point of law in the Upper Tribunal, including for applications made to the Upper Tribunal for permission to appeal. In addition, we agreed to make legal aid available for advice, assistance and representation for welfare benefit onward appeals in the Court of Appeal and Supreme Court. The order before us today makes a further concession which is not insignificant.
It may be helpful if I illustrate how this will work. An individual will make an appeal to the First-tier Tribunal against an administrative decision of a public authority. If the appeal is unsuccessful, the claimant can request a statement of reasons for the decision. The appellant can then apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal. At this point, the First-tier Tribunal must consider whether to review its own decision if it considers that it has erred in law, and legal aid for advice and assistance will now be available in relation to that review. If the tribunal decides not to review, the next step is for the First-tier Tribunal to decide whether to grant or refuse permission to appeal to the Upper Tribunal. Where the tribunal refuses permission to appeal, the appellant can then apply directly to the Upper Tribunal for permission to appeal. Again, legal aid will be available for an application for this stage of the process. If permission is granted by the Upper Tribunal, then legal aid is again available for the substantive appeal before the Upper Tribunal.
Therefore, it is wrong and misleading to suggest that we are not making legal aid available in respect of points of law. As I mentioned in my opening remarks, we considered this matter in great detail following the debates during the passage of the Bill. We have explored every possible option to find a workable solution. Our considered assessment is that other methods of independent verification would have proved unworkable. We did consider the CAB proposals but we felt that they would create unreasonable cost and administrative burden. The cost is important. We have never tried to hide the fact that part of the exercise was for legal aid to make a contribution to the cuts in the spending review for the Ministry of Justice, a department which spends money only on prisons, probation, court services and legal aid. The proposals would have placed burdens on the successor to the Legal Services Commission, the tribunal judiciary and the Department for Work and Pensions.
In the Government’s impact assessment we identified that, in 2009-10, we funded 135,000 instances of welfare benefits legal advice. If the judiciary had to consider up to 135,000 interlocutory applications for legal aid, the impact on the tribunal service would be severe, and it could lead to serious delays in the resolution of other cases. Similarly, if the Department for Work and Pensions or the successor to the Legal Services Commission had to consider that large number of cases before they could be funded, it would result in a significant extra administrative and cost burden. We do not believe it right to impose these additional burdens in the current economic climate.
We have therefore decided on the approach set out in the order. This would impose no additional burdens on the tribunal judiciary because it must already consider whether to conduct a review on receipt of an application for permission to appeal against a finding of the First-tier Tribunal. The tribunal can conduct a review only if it is satisfied that there has been an error of law in the First-tier Tribunal’s decision.
Baroness Mallalieu
If the position is, as we have heard during this debate, that the noble and learned Lord, Lord Mackay, a former Lord Chancellor, and my noble friend Lord Bach, a Queen’s Counsel, cannot agree on the interpretation of the wording of Article 3 of this order, is it not clear that people who have no legal qualification and are going to have to look at it to see whether they can obtain legal aid are going to be completely mystified? Whatever the merits or otherwise of the order which the Minister is addressing now, this is badly drafted, unclear and needs to be looked at again.
Lord McNally
I do not accept that. I accept that the lawyers may have glossed the patch a little, as the noble Lord, Lord Reid, acknowledged. We are discussing various complex matters of its operation. I go back to the point that our initial intention was to take welfare out of legal aid—something that the noble Lord, Lord Bach, has opposed from the very beginning; I understand and appreciate that. That does not take away the fact that we have argued our case through both Houses of Parliament and put an Act on to the statute book. This is about implementing that Act.
It is clear that the Government have listened. We have compromised. However, we can go no further with concessions which impact the fundamental objectives of our reform: to focus legal aid on the highest-priority cases while delivering the essential savings needed to address the deficit which is threatening this country’s stability.
I was at a conference the other day where the noble Lord, Lord Bach, used a term which he may have been saving up for his final remarks. He said that next year we face a “perfect storm” in terms of welfare, in that we are indeed carrying through the LASPO reforms and the welfare reforms at the same time. That is going to introduce strain. However, the perfect storm would be if we lost control of our currency and economy, and if we lost markets. That is when the people whom we have heard about today, whom people want to protect, would really feel the full blast of economic problems. We are trying to—
Lord Howarth of Newport
I am grateful. The noble Lord used to tell the House that taking welfare benefits out of the scope of legal aid would save £25 million, but we know also that his department is dumping all kinds of costs on other departments through the health consequences and the damage to vulnerable children living in circumstances of great poverty. What is the noble Lord’s assessment now of the net contribution to reducing the deficit made by his policy of removing access to justice for some of the neediest people in our society? Does he still think that it is £25 million? Does he think it is less? Does he think that that is the crucial difference that is going to avert fiscal disaster?
Lord McNally
I do not believe that these matters remove access to justice. I notice that an organisation called MyLegal put out quite a long briefing, the interesting bit of which was on the last page, where it said that Ken Clarke had said these measures would cost £25 million. The briefing said that that was wrong and that it was £14 million. The noble Lord, Lord Bach, said that it would cost only £5 million. What I do know is that it will have a cost. When I am carrying out my other responsibilities in the Ministry of Justice and I am suddenly told by this House, which has no responsibilities in the Ministry of Justice, that I have to find £5 million, £15 million or £25 million, there are decisions that must be made. I sit on boards where people lose their jobs and where the management of these changes is extremely difficult. I have never tried to hide that but I ask this House to have a sense of responsibility. We came up with a concession after a lot of exploration and talks with departments and various boards. It is a narrow concession but it comes on top of a whole range of other concessions which we believe retain legal aid in a vast swathe of the process of welfare and which we think is in keeping with the promises we made to Parliament.
I ask this House not to go further in voting on this. I must make it clear that, if the amendment is carried and this concession is lost, the Act is still an Act of Parliament and will still be implemented in April but without this concession. I would consider that a rather pyrrhic victory.
Lord Pannick
My Lords, I am very pleased that the Minister has agreed to bring forward amending regulations that will deal with Regulation 53(b) and I thank him for considering the points that have been made in the debate. He mentioned that the regulations would focus on whether the alternative remedy is effective. I hope that when he and his officials read the record of this debate, they will see that the concern is that the criterion should state that the issue is whether the alternative remedy is a reasonable one to use in all the circumstances. It is not just a question of efficacy; it is also a question of speed and convenience, for example. The Minister indicated that he would consult noble Lords who have expressed concern about this. I very much hope that he will take further advantage of the free legal advice available from, in particular, the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Goldsmith. I would be very happy to act as their junior in this respect. On that basis, I beg leave to withdraw my amendment.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
Lord McNally Excerpts(11 years, 5 months ago)
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Lord McNally
That the draft order laid before the House on 29 October be approved.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments
Amendment to the Motion
Lord Bach
My Lords, I spoke to my amendment earlier in the debate and the House will be relieved to hear that I have very few words to say at this stage. My case is this: how can it be right that there is automatic legal aid for any client who gets to the second-tier or upper tribunal—the Court of Appeal and the Supreme Court—on a welfare law case but no automatic right to legal aid for first-tier tribunals? You can get to the second-tier tribunal or the Court of Appeal or the Supreme Court only on a point of law. If that is the position, how can it be right that at a first-tier tribunal, when a client has a point of law, they should not be allowed some legal advice before the first-tier tribunal commences—in other words, before the first-tier tribunal or during it? It is no use being able to get it at the very end of the first-tier tribunal in very remarkable and odd circumstances.
The Government seem to believe that was appropriate logic because that is the concession they were generous enough to make in the House of Commons on 17 April 2012. But they have not kept to that concession. They have come up with something much more vague; something that will happen in very, very few cases.
I am very grateful to the Minister for the time he has taken with this and to all noble Lords who have spoken on my amendment. When the Minister answered a question from me the other day he said:
“I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy”.—[Official Report, 27/11/12; col. 90.]
Can noble Lords think of anyone who is more needy than the sort of person that the noble Baroness, Lady Doocey, was describing—a disabled person who has undergone some of these tests in order to get her or his benefits, who is not happy with the result, thinks something has gone wrong and wants to appeal? What the Government are intending is that that person should not have the ability to get legal aid in order to appeal to the first-tier tribunal even when the matter is a point of law which they cannot be expected to know or understand. It defies logic and fairness to suggest that kind of process should continue.
All we are asking is that the Government withdraw this Motion, which they are clearly not prepared to do tonight. If they will not withdraw it, I shall ask the House, in a completely non-partisan spirit, to decline to give approval to this Motion tonight and invite the Government to come back with a slightly more generous order that looks after the type of person the noble Baroness, Lady Doocey, was telling us about earlier in our debate.
Lord McNally
My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not.
Lord McNally
It is not a threat. I just do not want the House to make a decision on such an idea. This is not the Committee stage of a Bill. The order relates to what is already an Act of Parliament. If we do not bring forward another order in this area, the Act simply will go through. I want the House to be aware of that fact.
Lord Bach
There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.
Lord McNally
I will answer it—I answered it in my remarks. The Lord Chancellor said that he would take the matter away and use his best endeavours. I have seen the exchange of papers with the DWP, the Legal Services Commission and the Administration on whether this could be done. We have come back with our best endeavours. This casual throwing around of betrayal fires the troops up for voting but it simply is not true.
Lord Bach
I would not dream of using the word betrayal as regards this matter. The noble Lord misunderstands me completely. It is not a betrayal. The governing party in the House of Commons said that it intended to do something and, in that way, managed to get an adverse amendment withdrawn. It has come up with a solution but the solution is not the concession that it made in the House of Commons. That is the fact of the matter. It is a much narrower solution and it is deeply unsatisfactory for those who are interested in how the poor, the disabled and the vulnerable are looked after in our society and their rights to access to justice.
For that reason, I ask the House to decline to approve this order, so that the Government can think again and come back with an order which we can all accept. I beg to move.
Leveson Inquiry
Lord McNally Excerpts(11 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I would like to repeat a Statement on the Leveson inquiry made earlier in the House of Commons by the Deputy Prime Minister. The Statement is as follows:
“Mr Speaker, I am grateful for the opportunity to address the House. I know it is unusual, but this is an unusual debate. The terms of reference for Lord Justice Leveson’s inquiry were agreed on a cross-party basis. As the House has heard, we intend to proceed on a cross-party basis. So I think it is right that Parliament is clear on the initial views of the Government—across the coalition.
First, let me say that I agree with a huge amount that has already been said by the Prime Minister and the Leader of the Opposition, which bodes well for the cross-party talks taking place later this afternoon.
I would like to thank Lord Justice Leveson for his extremely thorough report. In my view, there are two big liberal principles at play in this debate: on the one hand, the belief that a raucous and vigorous press is the lifeblood of a healthy democracy; on the other, the belief that the vulnerable, the innocent and the weak should be protected from powerful vested interests.
A free press does not mean a press that is free to bully innocent people or to abuse grieving families. What I want now is for us to strike a better balance between those two liberal principles, so that our media can scrutinise the powers that be, but cannot destroy innocent lives; so that the journalists up in the Press Gallery can hold us, the politicians, to account, but we can look up to the individuals and families in the Public Gallery knowing they have the right protections in place.
I have always said that I would support Lord Justice Leveson’s reforms, providing they are proportionate and workable. I will come on to why, at first glance, I believe that to be the case for the report’s core proposal for a tougher system of self-regulation, supported by new, independent checks, recognised in law.
However, I do not want to disguise the fact that I have some specific concerns about some specific recommendations; for example, on data protection rules, and any changes to the way in which journalists can use personal information when reporting in the public interest; and on the suggestion that it should be Ofcom that independently verifies the new press watchdog. Ofcom has a key role in regulating the content of broadcast media, but I am yet to be convinced that it is best placed to take on this new, light-touch function with the print media as well. Lord Justice Leveson has himself said this function could be fulfilled by a new body.
However, on the basic model, of a new, self-regulatory body, established with a change to the law, in principle, I believe this can be done in a proportionate and workable way. I understand the entirely legitimate reasons why some Members of this House are wary of using legislation. I myself have thought long and hard about this. I am a liberal; I do not make laws for the sake of it—and certainly not when it comes to the press. Indeed, when I gave my own evidence to the inquiry, I made the point that, if we could create a rigorous, independent, system of regulation that covers all the major players, without any changes to the law, of course we should. But no one has yet come up with a way of doing that.
Lord Justice Leveson has considered these issues at length. He has found that changing the law is the only way to guarantee a system of self-regulation that seeks to cover all of the press, and he explains why the system of sticks and carrots he proposes has to be recognised in statute in order to be properly implemented by the courts.
What is more, changing the law is the only way to give us all the assurance that the new regulator is not just independent for a few months or years but independent for good. Someone will need to check, periodically, that the independence of the regulator has not been weakened over time. The report explains why that needs to be set out in law. As Lord Justice Leveson himself says:
‘This is not, and cannot be characterised as, statutory regulation of the press’.
This is a voluntary system, based on incentives, with a guarantee of proper standards. It is not illiberal state regulation.
It is worth dwelling on that point for a moment because, while there has, rightly, been a lot of discussion about the risks of legislating, there have, so far, been key arguments missing from this debate. First, the press does not operate in some kind of lawless vacuum; it has to abide by the law. In many instances it is already protected by the law, and I agree with the report that we should actually go further in enshrining the freedom of the press in statute.
Secondly, it has been suggested that using the law will blur the line between politicians and the media, but we must not ignore the extent to which that line has already been blurred under the current system of self-regulation. It is the status quo which has allowed such cosy relationships between political and media elites to arise in the first place. And let us not forget that, of the five PCC chairs, three were serving parliamentarians who took a party whip. Far from allowing greater overlap, the laws that have been proposed give us a chance to create a hard wall between politics and the press.
Thirdly, as the report notes, there is already an example of statutory underpinning in the Press Council of Ireland, which has been accepted by a number of UK newspapers. The Daily Mail, the Daily Mirror, the Daily Star, the Sun, the Sunday Times, the Mail on Sunday and the Sunday Mirror are all members; they all publish Irish editions. I have not yet heard these papers complain of a deeply illiberal press environment across the Irish Sea.
Of course, neither I nor anyone can be certain of exactly how these proposals will look until we have worked up the detail. The two tests I have set—that any reforms must be workable and proportionate—will need to be met in practice as much as in principle, and if they are not I will be the first to sound the alarm. In that event, we would then need to consider alternatives.
Absolutely the worst outcome in all this would be for nothing to happen at all, but we must not now prevaricate. I, like many people, am impatient for reform. Bluntly, nothing I have seen so far in this debate suggests to me that we will find a better solution than the one which has been proposed. Nor do I draw any hope from the repeated failure of pure self-regulation that we have seen over the past 60 years. We need to get on with this, without delay. We owe it to the victims of these scandals, who have already waited too long for us to do the right thing—too long for an independent press watchdog, in which they can put their trust. I am determined we do not make them wait any more”.
I commend this Statement to the House.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Lord, Lord McNally, for repeating the Statement of his right honourable friend the Deputy Prime Minister in the other place. It is a bit like the No. 11 bus: we have been waiting a long time for a Statement on press regulation and two come along at the same time. The House has shown remarkable sympathy to accommodate the strains and stresses of the coalition Government and allow this to happen. Perhaps it will be equally accommodating when we are dealing with the Electoral Registration and Administration Bill, which we hope will come along at some point.
I found myself largely in agreement with much of what the noble Lord, Lord McNally, said. I also pay tribute to his long-standing and consistent work in this area. Of course, the reason why the Deputy Prime Minister found it necessary to make a statement separate from that of the Prime Minister is now clear: there is a fundamental difference between the Prime Minister and the Deputy Prime Minister. The Prime Minister is extremely reluctant that statute should be involved in any way in a system of independent regulation of the press, whereas the Deputy Prime Minister is clearly convinced that a new system of independent regulation must be supported by statute. I invite the noble Lord, Lord McNally, to reiterate that Lord Justice Leveson could not have been clearer about why statutory underpinning of his proposed system of independent self-regulation is required. Paragraph 70 of the executive summary of the Leveson report says plainly that,
“it is essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes”.
Does the noble Lord, Lord McNally, accept that Lord Justice Leveson absolutely rejects as inadequate the proposals put forward by the noble Lord, Lord Black? In paragraph 53 of the executive summary, Lord Leveson says that,
“the new body must represent the interests of the public as well as the press and the proposed model”—
the Black model—
“does not go anything like far enough to demonstrate sufficient independence from the industry (and in particular, serving editors) or sufficient security of high and unalienable standards for the public; neither does it appear to have sufficient support from all the major participants within the industry”.
Surely that is persuasive in the need for action to provide the statutory underpinning that Lord Justice Leveson puts forward.
In his response, the Prime Minister seems to be setting himself against a fundamental point of what Lord Justice Leveson proposes. He is setting himself against where the public are and he is certainly setting himself against where victims of the media want politicians to be. Of course, legislating on the press is a difficult and complex area but we believe that the Prime Minister is making a misjudgment on this issue. He should put his faith in what Lord Justice Leveson is proposing and enact it.
We welcome the Statement from the noble Lord, Lord McNally, and look forward to working in cross-party talks with him and his party on this point. It is very simple: we should not allow the press to have another lock-in at the last chance saloon, which has lasted for so many decades. Our democracy needs a free press, but a clean press, too. We will work very hard to achieve that.
Lord McNally
My Lords, I am grateful for the kind, personal remarks of the noble Lord, Lord Hunt. The noble Lord, Lord Prescott, called out from a sedentary position, “What’s the difference?”. The noble Lord, Lord Hunt, tries to find differences. One of the things that I found most encouraging about the two Statements—indeed, the three Statements made in the other place today—is the broad level of common ground. I hope that everyone will take the opportunity, including my noble friend Lord Black, to read the Leveson report and then match the statements that they made before reading it in the light of it. In some ways it is an insult to someone who has spent as long as Lord Justice Leveson has, whether it was a year or nine months—I am never quite sure, but it was a very long time—to produce a four-volume 2,000-page report, and then to announce, “I agree with this; I agree with this; I agree with this”. Let us read the report and think about how to go forward. I am pleased that, as far as I am aware, those cross-party talks have already been in place for the past 55 minutes, which bodes well.
Lord McNally
My Lords, there will be a test tomorrow. If tomorrow’s newspapers and editorials follow the lines suggested by the noble Baroness, I—and, I hope, the noble Lord, Lord Black, and anyone who has influence on it—will say that our media have misjudged horrendously the public mood and the public disgust at their behaviour. It is simply not good enough to wave the flag that it will be a state-controlled press and Russia and Turkey will be pleased at what we are doing, when manifestly that is not the case. That would be really sad.
There is also a responsibility on us. I do not mind the odd bit of knockabout, and I might remind the other side of its record in this area at some points in this questioning, but the responsibility of the three parties that have had experience of government is immense. This is our chance, a chance that may not come again, and it would be a betrayal if we did not take it.
Lord Ashdown of Norton-sub-Hamdon
My Lords, in that precise context, does my noble friend agree that those in the press who have so overplayed their hand in their pre-emptive bombardment of Leveson, in the hope that we would somehow put it aside, have woefully misjudged both the public mood and the seriousness of the problem that confronts them, to which Lord Justice Leveson has provided such a balanced reply?
Lord Clinton-Davis
My Lords, the Minister spoke about the vulnerable, the innocent and poor people. Undoubtedly the issues that such people face will be complex and they will need help. Will the noble Lord undertake that, in suitable cases, legal aid will be available to them?
Lord McNally
I suspect that legal aid would be available. However, this is not the evening to discuss that issue.
Baroness Hollins
My Lords, can the Minister suggest an appropriate and achievable timetable to scrutinise Lord Justice Leveson’s proposals for legislative action? Can he reassure the House that the case for legislation to underpin independent self-regulation will not simply be referred to another committee?
Lord McNally
I most sincerely hope not. As I said earlier, all-party talks started, as I understand it, at five o’clock. When I had the pleasure earlier today of sitting in on a meeting between the Prime Minister and the Deputy Prime Minister, they were both clearly determined that this issue would be pressed with all possible urgency. It will not run into the sand or go into the long grass, and the sooner that the press understand that and respond with a sense of urgency and reality, the better.
Lord Inglewood
My Lords, I should declare an interest as chairman of the Cumbrian Newspaper Group, not that that makes me much of a press baron. Will my noble friend confirm that the Government accept Lord Justice Leveson’s findings of fact in his report?
Lord McNally
I would assume so, although I am not sure whether there is an elephant trap in that. One of the things that have been said by all those who have responded is that they pay tribute to the absolute thoroughness of the work done by Lord Justice Leveson.
The Lord Bishop of Chester
My Lords, I welcome the report. Perhaps I may follow up the aside of the previous speaker and ask where do the press begin and where they end. It is not clear how much printed media there will be in the coming 20 years; increasingly they are going to be in the blogosphere, twittering and whatever, and it seems that, whatever the Government do, they must weigh that very carefully. The problems of the press are increasingly going to be the problems of the paperless media. I would like a reassurance that, in swiftly implementing what the inquiry says, the matter will be given careful thought.
Lord McNally
My Lords, we are most certainly moving into a new age, but let us be clear: newspapers that publish online are already subject to the same disciplines as the printed versions of those newspapers. As I think we discovered in the Lord McAlpine case, electronic tweeting, e-mails and so on are not protected from the other laws of this land.
Lord Whitty
My Lords, there seems to be one dimension that the discussion in this House so far has missed. A truly free press requires diversity of opinion and therefore diversity of ownership. A whole chunk of the recommendations in the report relate to that plurality point. The Government have a great chance. There is a Bill already before this House, the Enterprise and Regulatory Reform Bill, in which the recommendations made here on media ownership, competition and plurality could be introduced at this stage. Will the noble Lord and, indeed, the Leader of the House prevail upon their colleagues to consider putting them into the Bill?
Lord McNally
I will certainly take that suggestion back, and I think that the noble Lord is quite right. Although the Leveson report devotes a relatively small amount of attention to plurality, it throws on our respective Houses and on the Government the responsibility of looking at, monitoring and, if necessary, responding to questions of plurality. I hope that we will take up the challenge posed in the report because, as has been said, this is an industry in technical change and we may find that there are very rapid concentrations of power. We may well need to be able to respond to such concentrations, but whether or not that is done through the noble Lord’s suggestions is above my pay grade.
Lord Steel of Aikwood
My Lords, I hope I am not alone in expressing my deep sympathies for my noble friend and for the Leader of the House at having to repeat these two Statements in the House because it is surely not the right way to proceed. What really matters are the all-party talks, and I am delighted to hear from my noble friend that they have already started. The danger about these Statements is that they overemphasise the differences within the coalition before the talks have started. That is not the right way. Lord Justice Leveson took a long time to produce a weighty report, so we should treat it seriously and see that it is properly implemented.
Lord McNally
I hear what my noble friend said, but this is one of those dilemmas. In each House, my right honourable friend and I could have sat silently while a Conservative made the points, or we could have done what I think is the sensible thing, which is to set out clearly the attitudes of the three major parties that are going to have responsibility for seeing this through. I think we took the right decision and do not agree with my noble friend.
Lord Foulkes of Cumnock
On the specific point made by the noble Lord, Lord McNally, this is a different House from the House of Commons and very different in its procedures. I have agreed with everything that the noble Lord has said so I hope he will forgive me if I ask him: in what capacity was he speaking from the Dispatch Box? Why could he not have done what has been done on a number of previous occasions—the noble Lords, Lord Alderdice, and Lord Dholakia, have done it—and expressed a point of view from the Liberal Democrat Benches? That is what is done in this House, which is different from the other place.
Lord McNally
This House would not then have had the benefit of hearing what my right honourable friend the Deputy Prime Minister said in the other place. I was trying to work out how long the noble Lord and I have known each other. I think it is—
Lord McNally
So he knows the affection in which I hold him. However, I do not think that this is an issue for the barrack-room lawyers. It is a time for statesmanship in all three parties.
Lord Elystan-Morgan
My Lords, I resist completely any temptation to embarrass the noble Lord in relation to the issue of legal aid, something that I have assiduously sought to do over the past six months, but does the Minister accept that Lord Justice Leveson says in his report that any complaint should be made,
“without cost to the complainant”?
Therefore it does not matter whether that comes from legal aid or some other public purse—there should be that complete freedom and guarantee in this regard.
Lord McNally
As with other parts of the Leveson report, we will have to look at this. However, one of the things that I know is in the report is the suggestion that, rather than a purely legalistic solution, there should be a road for settling complaints against the press that is cost-free.
Lord Elton
My Lords, I come back to the involvement of statute. I was 12 years old when the first of the succession of reports on the misconduct of the press was published. I was not old enough to take much interest in it, but I have taken an increasing level of interest in the successive ones. Every report has concluded that the press has undertaken to behave better. I was greatly impressed by the proposals from my noble friends Lord Hunt and Lord Black but it comes down to the fact that if their working is dependent on the press fulfilling its undertakings to behave differently, then I hope my noble friend and his right honourable friend will look at the record before deciding how much weight to put on those undertakings.
Lord McNally
My noble friend makes a very sound point, and it is extremely good that it comes from someone on the Conservative Benches with such long experience of these matters.
Baroness Symons of Vernham Dean
My Lords, the Deputy Prime Minister’s Statement makes the very important point that the statutory underpinning of the Press Council of Ireland is accepted by those very newspapers that have become so hysterical about the possibility of statutory underpinning in this country. Will the Deputy Leader of the House assure the House that this crucially important point will not be lost in the cross-party discussions that will take place and that the Deputy Prime Minister will stick to his guns on this point?
Lord Clement-Jones
My Lords, Lord Justice Leveson makes clear recommendations about changes to the framework of the Data Protection Act in terms of eliminating some of the exceptions that currently apply to the media. I note in the Statement repeated by my noble friend that my right honourable friend has certain reservations about that set of recommendations. Is the abuse of personal information not one of the root problems that we have seen during the past few years? Should we not proceed with those changes, particularly in light of the fact that his department would be responsible for making them?
Lord McNally
No, my Lords, we should not proceed with those changes but we should certainly move with speed to see how such changes could and should be implemented. The recommendations on data protection came slightly from left field; I am not sure that anyone was fully aware that Lord Justice Leveson would make suggestions in this area. It is an area where we are discussing matters in a European context, in terms of revising the European data directive and our own legislation. My right honourable friend the Secretary of State for Justice and I have already commissioned work within our own department to respond to the Leveson suggestions. As with other parts of the report, we will move forward with all due purpose.
Baroness Farrington of Ribbleton
My Lords, while joining all the speakers who have condemned the attacks on people who are particularly vulnerable at times in their lives, such as the McCanns, and noting the Leveson report’s reference to a second inquiry, which cannot be discussed at this stage, will the Minister please confirm that not only the weak and vulnerable but everyone who has the sought the limelight or is in public life should be exempt from anything that is found to be an illegal action?
Lord McNally
Yes, my Lords, I am sure that that is broadly the case. I have just been asked to remind the House, in relation to the question asked by my noble friend Lord Clement-Jones, that the illegal use of data is already against the criminal law. I say in response to the noble Baroness that what we want is a press that respects us all, and for us all to respect that press.
Baroness Rawlings
My Lords, Lord Justice Leveson recommends that there should be a new a regulatory body for the press, that it should not be made up of the press, as was the PCC, and that it should not be made up of parliamentarians or Ministers. Who would make up this new independent body? Who would appoint the members? Would they be elected and what role would the judiciary play?
Lord McNally
These matters will be looked at because they are not prescribed in the report. Although the judiciary must be feeling a little overworked these days because of the number of times we ask them to pick up hot potatoes for us, it is an interesting thought that there may be some judicial role in setting up the body.
The key thing is to emphasise that there is a broad measure of support for this and, I suspect, a broad measure of political determination. There have been views from different places this evening. Although I have occasionally thought that this House could be reformed, I have never been in any doubt that there is a collective wisdom in the House that Governments should draw on, particularly at times like this. On 18 December, we will have a debate on this in the House. The other place contains faster readers and they will have their debate on Monday. The debate on 18 December could—and, knowing this House as I do, will—contain a great detail of experience and wisdom, which will carry us forward on this issue.
Justice: Legal Advice
Lord McNally Excerpts(11 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.
Lord Bach
My Lords, I thank the Minister for his reply. Does he agree that a fundamental test of any legal aid system is whether it gives access to justice to the poor, the disabled and the marginalised? If it does not do that, what is its point? It is agreed by everyone that many hundreds of thousands of our fellow citizens will be deprived of legal help and legal advice from 1 April next year—rightly named All Fools’ Day. Does he further agree that for this to happen at all, let alone in the middle of radical changes to our welfare system, is a disgrace and is certain to lower the reputation of our whole legal system?
Lord McNally
My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.
Lord Marks of Henley-on-Thames
My Lords, given that Citizens Advice has a wealth of experience in the area of social welfare law and, importantly, that it is not limited to giving legal advice but can also advise individuals in areas such as debt management, will the Government keep the funding of Citizens Advice under review to ensure that it can continue to provide its valuable and high-quality service?
Lord McNally
My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.
Lord Beecham
My Lords in 2011-12 the Newcastle CAB advised on 8,000 benefits problems. It has now lost £150,000 of government funding and three and a half posts, including its specialist welfare rights adviser. Gateshead CAB has lost £500,000. What advice can the Minister give these and other hard-pressed bureaux about how they can beat the rising demand for welfare law and welfare rights advice?
Lord McNally
I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.
Lord Mackay of Clashfern
My Lords, can the Minister say what is the outcome of the discussions that were being held in relation to legal advice centres—not only advice but legal advice centres, of which there is a network—as a valuable way of giving legal advice economically?
Lord McNally
We continue to support the concept of legal advice centres, but they too have had to make some tough decisions in these circumstances. I hope that we can retain a good network, but we have had to make tough decisions in this area.
Lord Elystan-Morgan
The Minister says that we are poorer, but we are not poorer. When legal aid was established immediately after the Second World War, we were absolutely skint. We had to negotiate a crippling American loan. The economic situation we are now in is infinitely better than it was then. Why is legal aid being sacrificed on the altar of economic need?
Lord McNally
Legal aid is not being sacrificed on any altar. I pay tribute to the foundation of legal aid in 1948, but by the time we came into office, the legal aid budget was over £2 billion and the outgoing Government were already planning to cut it. I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy.
Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012
Lord McNally Excerpts(11 years, 5 months ago)
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Lord McNally
That the draft order laid before the House on 15 October be approved.
Relevant documents: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 20 November.
Prisoners: Voting Rights
Lord McNally Excerpts(11 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice:
“Mr Speaker, I wish to make a Statement about the Government’s approach to the judgments of the European Court of Human Rights on prisoner voting.
This is a subject that provokes intense debate, not least in this House. As the House will know, from as early as the case of Hirst in 2004, the court found the United Kingdom’s bar on prisoner voting to be ‘general, automatic and indiscriminate’ and concluded that it was, in the court’s view, in violation of Article 3 of Protocol 1 of the European Convention on Human Rights—the right to free and fair elections.
The previous Government committed to implementing the judgment and issued two consultations that did not resolve the issue. Litigation has continued in the domestic and Strasbourg courts. In the case of Greens and MT in 2010, the Strasbourg court again found that the UK was in violation of Article 3 of Protocol 1 of the convention, and gave the UK six months to bring forward legislative proposals to remove the violation. This deadline was stayed pending the UK’s intervention in a further case, Scoppola, involving the Italian Government. In this case, the Attorney-General argued in person before the court that national parliaments’ discretion to determine policy on this issue should allow for a complete bar on prisoner voting.
The judgment in the Scoppola case was handed down in May this year. It concludes the Strasbourg court’s consideration of the issue. In that judgment the court made it clear that in its view the ‘margin of appreciation’ afforded to individual Council of Europe member states to decide on how far prisoners should be enfranchised was wide, but confirmed its position that a complete bar was outside that margin. The judgment restarted the clock on Greens and MT and requires the Government to ‘bring forward legislative proposals’ to give effect to the judgment by tomorrow, 23 November, and to enact the required legislation.
The Prime Minister has made clear, on the record, his personal views on this subject. I have done the same. Those views have not changed. However, the Government are under an international law obligation to implement the court judgment. As Lord Chancellor, as well as Secretary of State for Justice, I take seriously the obligation on me to uphold the rule of law. Equally, it remains the case that Parliament is sovereign, and the Human Rights Act explicitly recognises that fact. The current law passed by Parliament remains in force unless and until Parliament decides to change it.
As Lord Justice Hoffmann put it in a case in 1999: ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’.
Last month, the Attorney-General made it clear in evidence to the Justice Committee that it is, ‘entirely a matter for Government to make proposals but ultimately for Parliament to determine what it wants to do. Parliament is sovereign in this area; nobody can impose a solution on Parliament, but the accepted practice is that the United Kingdom observes its international obligations’.
The judgment requires the Government to bring forward legislative proposals for Parliament to consider. It will then be for Parliament to scrutinise and decide on those. So I have today laid before Parliament a draft Bill for pre-legislative scrutiny, and the Leaders of both Houses are writing to the Liaison Committees proposing that a Joint Committee of both Houses be appointed to conduct that pre-legislative scrutiny. We judge that pre-legislative scrutiny of this nature is appropriate given the significance of this issue and the strong views on both sides that exist right across this House.
The draft Bill sets out three different potential approaches for the committee to consider. Presenting a draft Bill with that range of options reflects the spectrum of views that we know exist on this question. However, it will of course be for the committee, once established, to consider whether approaches beyond those canvassed in the draft Bill should also be considered by Parliament in due course.
The first approach in the draft Bill is for prisoners sentenced to less than four years to be entitled to vote. A four-year bar has previously been discussed by Parliament. The second approach would limit the vote to prisoners sentenced to six months or less. The final approach would effectively restate the current position that anyone incarcerated following conviction would not have the vote.
The committee will want to consider these approaches, their consequences if they were in due course adopted by Parliament, and whether there are other options; for example, the Italian system, found to be compliant by the court, disenfranchises prisoners post-release. The committee will, I am sure, consider evidence on this and other approaches. It may also want to reflect on the consequences of Parliament’s ultimate decision for the rule of law and the UK’s international standing. The committee might also wish to think about practical implementation. The administrative consequences and costs of different approaches for the Prison Service, the courts, the electoral registration system and electoral registration officers could be significant.
The House will want to note that this draft Bill does not yet deal with territorial extent. Any Bill introduced into Parliament would need to extend to the whole of the United Kingdom, although the Bill is currently drafted for England and Wales only. The Government will engage with the devolved Administrations during the pre-legislative scrutiny process to ensure the legislation applies correctly in Scotland and Northern Ireland, in recognition of the interaction with devolved policy matters.
When the Joint Committee has finished its scrutiny, the Government will reflect on its recommendations. We will continue the legislative process by introducing a Bill for full debate and scrutiny as soon as possible thereafter.
I have set out in some detail for the House the background to the draft legislation that I am publishing today, and the respective roles of the Government and Parliament in resolving this issue. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord McNally
My Lords, I thank the noble Baroness, Lady Smith, for that very constructive response and I accept immediately her offer to work with the Government to make this a constructive exercise. Obviously, the first objective will be to set up the Joint Committee and then to let it get down to its work. I hope that I have not damaged her political prospects too much.
Baroness Smith of Basildon
My Lords, I had not realised that I had been quite so constructive as the Minister thought.
Lord McNally
I am sure that when she reads Hansard she will agree with me, but if she wants to be more abusive to me in a letter, I shall put it in the Library of the House.
We can have analysis of how this issue has been handled during this past 10 years and whether there were better ways of doing it. The Statement today lets Parliament set out a path to resolving the issue which is sensible and which may help us get to a solution which addresses the complex and sometimes conflicting issues to which the noble Baroness referred. It is an acceptable view—I heard Mr Jack Straw express it again today—that denying prisoners the vote is a denial of civic and social rights but not of human rights, but the problem that we face is that the court has taken a different view and that we are legally committed to obey or recognise it. The Joint Committee will be able to listen to a wide range of views, which I am sure will be forthcoming.
It is a long-standing convention that the Government do not disclose their legal advice. However, on this exceptional basis and to facilitate appropriate parliamentary scrutiny of this issue, the Government will publish a summary of their legal position once the proposed Joint Committee convenes. My right honourable friend the Lord Chancellor has also made it clear that the Government will try to give the committee all facilities and information to allow it to come to a considered judgment. We could have lots of fun debating who should have done what and when during this past decade, but today we can set off on a path which allows Parliament, with a full regard—this I do take from what the noble Baroness said—to the wider implications of whatever decision is taken, to take this matter forward. As always, we will listen carefully to the views of this House.
Baroness Trumpington
My Lords, I do apologise for jumping up earlier and I shall jump down pretty soon. My remarks are based on many years as a member of the board of visitors of Pentonville prison and many years as a member of the mental health review tribunal dealing with Broadmoor.
First, I wonder about the inmates of Broadmoor, some of whom, one hopes, will become normal, if not totally, criminal lunatics with time. Will they eventually get votes? The same would apply to institutions where the prisoners are drug addicts. What would be their position? I have a feeling that every prison has a hospital. Who is going to judge whether the patients in the prison hospitals are in fit state to vote?
I also wonder whether Members of Parliament who have prisons in their constituencies have thought about their future voting figures—rather different perhaps from what they are now. There are a great many questions to be answered. I have a feeling that I share the views of the Minister and I hope that he can put my mind at rest on some of my questions.
Lord McNally
My Lords, the list of questions raised by the noble Baroness illustrates why this has been a very difficult issue. The issue of prisoners with mental illnesses has been looked at separately, but parallel, to this. However, the level and seriousness of illness has been a concern and that is why there are a range of options. I hope that when the Joint Committee is set up it will look at some of these issues and take evidence from a wide range of people with experience and expertise. I pay tribute to the noble Baroness’s personal expertise and experience in this area. Some serious examination is needed now based on good analysis and well informed opinion from people with experience. That then needs to be synthesised by the Select Committee into a well informed recommendation to Parliament. It is a sensible process and the indications are that all sides of the House will pay their part constructively.
Lord Dubs
My Lords, when I was on the human rights committee we visited the European Court of Human Rights in Strasbourg. It was concerned that Britain, which had previously implemented all decisions of the European court, would give encouragement to the notorious abusers of human rights around the world by not implementing this one. Will the Minister comment on that? Will he further comment on a letter dated 30 August 2011 that was sent from the European court to the British Government? The final paragraph of the letter states:
“The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no 3) for the introduction of a Bill to Parliament”.
Not a draft Bill; not a committee for the introduction of a Bill to Parliament. Surely we have missed the boat already.
Lord McNally
No, I do not think we have missed the boat already. In neither House have we pretended that this is an easy issue to deal with. If there was a consensus on what to do, we would have dealt with it quickly and early. However, we have conflicting views and we are taking this forward.
I agree with the noble Lord on one thing. I heard Mr David Davis in the other place say that what we do on this would be a precedent, and he is quite right. If the United Kingdom were to decide on a “pick-and-mix” attitude to the rulings of the court and the application of human rights, others would gleefully grab that example when we try to take them to task. I did not agree with the noble Baroness when she was rather dismissive of the progress we made in Brighton in reforming the court. I do not think that anybody has denied that the court needs reform and we made great progress there that is ongoing.
The most significant thing for me was the day after the declaration was signed when the Attorney-General hosted a tour de table where each of the responsible Ministers from the Council of Europe gave an explanation and a justification of how they were implementing the convention. Here was a Russian Minister—I know Russia is not perfect—explaining and justifying its stewardship of the ECHR. I am old enough to remember meetings with the old Soviet Union when any attempt to raise human rights was taken to be an interference in its internal affairs and could not be discussed. I consider it tremendous progress by the convention and by the Council of Europe.
Lord Ramsbotham
My Lords, I am very glad that we now have a framework but I am sorry that we are still embarked on the approach from the wrong way round, which is why the consultation has failed. The question should not be who should have the vote—that is what was laid down by the European court. The question is who should not have the vote. The consultation failed because it asked the wrong questions. I am concerned by that approach, although I am very glad to see that the Government are going to allow consideration of other options such as the one I have always advocated that the sentencer should award the removal of the right to vote at the time of sentence noted to a crime. I also note that there is still concern about costs. That a slight red herring. I have always understood that the costs are minimal because it will be postal voting which happens for all remand prisoners now anyway.
My concern and question relates to the current law passed by Parliament. As far as I understand it, the only law that affects voting is dated 1870. It condemns a person to prison as being a form of living death. That conflicts quite starkly with the Statement about rehabilitation revolutions which we have just heard from the Secretary of State. Is the law of 1870 still held to be applying or is there a new law at the back of this very sensible proposal? I look forward to helping the Select Committee when the time comes.
Lord McNally
I would have to take advice on whether the 1870 law is the only one. I presume that there have been successor electoral laws since then. However, I agree with the noble Lord that we now have a framework. Whether the wrong questions have been asked or in the wrong order, the committee once set up will have considerable leeway to set its own terms of reference. My right honourable friend in the other place made it clear that although the draft Bill gave a number of options that was not the full scope of where the committee could go or what the committee could examine. The Lord is quite right that mention of cost is a bit of scaremongering. It would be handled, I suspect, as postal votes. On the point mentioned by the noble Baroness, Lady Trumpington, I remember a newspaper suggesting that in the Isle of Wight the seat could be swung by the block vote from Parkhurst. It is a reductio ad absurdum of the debate.
I am told that the law disqualifying prisoners from voting is now contained in the Representation of the People Act 1983. We have moved on 100 years and it is interesting that the Act is now nearly 30 years old.
There have been many red herrings in regard to the methodology of prisoner voting. I suspect that it would be done by postal votes, which would not be a tremendous burden on the administration of any elections. However, that is another matter on which the committee can take expert advice.
Lord Dholakia
My Lords, whether we like it or not—and if not now then at some time in the future—and whether it makes someone sick or not, the Government are under an international law obligation to implement the ECHR judgment. That being the case, is my noble friend able to identify the countries in the European Union that allow those convicted of crimes to have the right to vote? As the Minister responsible for providing the initiative for the rehabilitation of offenders, does he accept that by granting prisoners the right to vote, it will help in the rehabilitation of offenders?
Lord McNally
My Lords, that illustrates the range of opinions on this matter. The Secretary of State set out his personal view and the personal view of the Prime Minister. I share the view of my noble friend that it could be possible to devise a system of enfranchisement for some prisoners that could play a useful part in a rehabilitation process. That may be something that he, or other bodies with which he is associated, may wish to put to the committee.
As regards the Council of Europe, some 41 members give prisoners the right to the vote to some degree or another and six continue with a blanket ban. Those six are: Armenia, Bulgaria, Estonia, Russia, San Marino and the United Kingdom.
Lord Prescott
My Lords, I welcome the Statement as it offers a number of options. You can accept the changes and, therefore, observe the rights of the convention; or, if you refuse, you can leave it. To reject and leave the convention would be a proper exercise of parliamentary democracy. Is the Minister aware that I am a member of the human rights committee in the Council of Europe? That committee has received reports of many abuses of human rights, particularly in eastern European countries. I was sent to release 130 people from an Armenian jail, who had been accused of threats to the state simply by holding a public protest. I was able to get them out of jail because I was able to argue that Armenia is in breach of human rights. However, having listened to them, I know that they would like parliamentary sovereignty to overrule the human rights convention and they are watching Britain to see whether we do this.
Lord McNally
My Lords, I am aware of the service of the noble Lord, Lord Prescott, not only on the human rights committee, but more generally, to the Council of Europe. That council and its membership is something of which Britain has, rightly, been proud. His illustration is a perfect follow-up to what the noble Lord, Lord Dubs, referred to. I hope that the committee and the other place, when they weigh in the balance the various competing issues, take full account of the fact that we might seem to be setting a precedent whereby it is optional whether one complies with the convention and the court. There are those on whom we have previously been able to exert pressure where that pressure will be the less because we have provided them with a precedent. It is not a complete and convincing argument but it is one that should be put into the mix for careful consideration.
The Lord Bishop of Chester
My Lords, does the Minister agree that in today’s society, which is so affected by the pressures of the popular press, there is a danger of prisoners being given pariah status, as illustrated by the fact that candidates for police and crime commissioner who had had a minor offence years ago in their youth were automatically disqualified? Should that not be in the forefront of the consideration of the Joint Committee? Can the Minister also clarify whether, and at what point, this matter might be subject to a free vote rather than a whipped vote?
Lord McNally
My Lords, on the latter point, I am afraid I cannot give the House guidance. Without trivialising it, the answer is how long is a piece of string; how long will a committee ponder, deliberate and take evidence on these issues and then bring them forward to Parliament. The process is there and I cannot believe that it will be approached frivolously. It will be approached seriously by those who serve on the committee. They will bring forward their recommendations and then the Government are committed to bringing forward legislation in the light of that.
I agree with the right reverend Prelate on the way that this debate is handled by the media. I am pleased that the Government are concentrating their efforts on rehabilitation—I was very pleased that the noble Baroness, Lady Smith, lent her support to that concept—and it is worth considering that this could be part of a rehabilitation process. That will be a part of the discussions that the committee will have to consider.
Baroness Seccombe
My Lords, many people serve up to 50% of their sentence in prison and the remainder on release when, of course, they could exercise their vote. So are we not fulfilling our obligation to the ECHR already?
Lord McNally
Apparently not. A number of people have pointed out that those in prison on remand retain the right to vote and a range of others who are incarcerated also retain the right to vote. The noble Baroness points out that those who are released, having served part of their sentence, can resume their right to vote. However, in the view of the court, that was not sufficient to clear the hurdle that it believed was implicit in the Article 3 responsibility. The committee will look at the issues. If there is a way that Parliament, particularly the House of Commons, can find favour with, we will take that solution forward.
Baroness Liddell of Coatdyke
My Lords, the Minister will be aware that the Scottish Parliament has more clearly delineated the relationship with the ECHR than this Parliament has. Can he give us some indication, particularly in the light of his response to the right reverend Prelate, on the timing of getting legislation through Parliament and what he thinks the implications of that would be for the referendum on Scottish independence, which is now less than two years away?
Lord McNally
I do not want to speculate on that. I shall repeat what my right honourable friend said in the other place concerning the devolved areas and jurisdictions. This morning, he talked to the Scottish justice secretary, and to Wales and Northern Ireland, and the reason they were not in the original document was simply that we were not able to consult them in advance of publication. However, as this matter is taken forward, we want them all to be fully involved.
Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012
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Lord McNally
That the Grand Committee do report to the House that it has considered the Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012.
Relevant document: 8th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the purpose of this order is to remove the provisions of the schedule to the Legal Services Act 2007 (The Law Society and The Council for Licensed Conveyancers) (Modification of Functions) Order 2011 which bring to an end the Law Society’s powers to make compensation arrangements for licensed bodies on 31 December this year. The Legal Services Act 2007 sets out a framework for the regulation of legal services in England and Wales. Part 5 of the 2007 Act sets out arrangements under which licensing authorities, which are legal service regulators that have been designated for this purpose under the 2007 Act, may license firms which are partly or wholly owned or controlled by non-lawyers, to provide legal services or a mixture of legal and non-legal services. Such firms are known as licensed bodies and are sometimes referred to as “alternative business structures”.
The Law Society was designated as a licensing authority under the Legal Services Act 2007 on 23 December last year. Under the 2007 Act, Section 83 requires all licensing authorities to have compensation arrangements in place to protect consumers of licensed bodies. Noble Lords may remember that one of the provisions of the 2011 order was to extend the Law Society’s existing powers in relation to compensation arrangements under the Solicitors Act 1974 to allow it to make rules about compensation arrangements for licensed bodies. However, this extension of powers was to apply only for a transitional period, which will end on 31 December this year.
During the Committee debate on the 2011 order, I mentioned that the sunset clause was included in the 2011 order. This was because the Solicitors Regulation Authority, the regulatory arm of the Law Society, had announced during the drafting stages of the 2011 order that it was undertaking a review of its compensation fund and expected that new long-term compensation arrangements would be in place by the end of December 2012 for all types of solicitors, including ABS bodies, following the conclusion of the review. The SRA only issued its first ABS licences in March 2012, which was later than had originally been envisaged at the time the 2011 order was laid, and sufficient information is not yet available. The SRA therefore asked that the current arrangements be extended and asked for a further Section 69 order to be made. Following discussion with the Legal Services Board, the oversight regulator for legal services, the LSB consulted on the issue in June 2012 and made its recommendations to the Lord Chancellor in August. Having considered the responses to that consultation, it recommended that the sunset clause should be removed. A new sunset clause has not been included under this order so as to avoid imposing an artificial deadline on the development of alternative compensation proposals which may not be in the best interests of consumers or practitioners.
Although the SRA has committed to review the current compensation arrangements over the next two years, that review may result in changes to the current arrangements. Without knowing what those arrangements will be, it is difficult to estimate how long any changes may take to implement. The Legal Services Board will monitor the review and expects the SRA to provide public indications of its progress.
I am sure that noble Lords will appreciate the importance of enabling the existing compensation arrangements set out in the 2011 order to remain in place beyond the end of this year. That will ensure that the Law Society, a statutory body that requires a statutory basis for its compensation fund, can continue to comply with the requirement to have licensing rules about compensation arrangements and, critically, ensure that consumers of ABS firms have continuous access to compensation. I therefore commend this draft order to the Committee and I beg to move.
Lord Beecham
My Lords, I ought to declare an interest as a member of the Law Society and as a virtually non-practising solicitor, who in his professional career has no doubt contributed significantly to the assets of the compensation fund without, as I recall, having to draw down from it, no doubt to the satisfaction of my former clients.
The Solicitors Regulation Authority makes the Circumlocution Office look like a model of efficiency, to judge by the delays in its approach to this matter. It does not seem to have thoroughly mastered the implications of the complex structure that has been created as a result of the formation of alternative business structures, to use the jargon that the Minister referred to. Many of us have reservations about these new bodies but, be that as it may, they are with us and they certainly have to be regulated—in particular, there has to be proper provision for compensation where things go wrong.
It appears that the SRA is to review these compensation arrangements as part of what it calls a root-and-branch review in two years’ time. The Law Society concedes that it would be sensible to extend the time during which the present arrangements continue, but it is far from certain that the SRA has the necessary resources to conduct that review thoroughly and properly. Perhaps the Minister could indicate what assurances he has received about the resources and the timeframe and whether the MoJ will be in regular contact with the SRA to try to ensure that a timetable is agreed and kept to. It is clearly important, given the likely growth of these new structures and the potential for claims to arise in the mean time, that the system is improved as rapidly as possible. As I say, it is not clear—to the Law Society, at any rate—that the SRA is in a position to do that. There are other problems with the SRA, with which the Minister is no doubt familiar, but those are not a matter for discussion today.
In the Law Society’s view, there is also a case for looking at the compensation fund as a whole. The society has for some time been calling for a review to look at the impact of the new structures and whether it is still appropriate for there to be a single fund covering both types of practice—traditional solicitors’ practices and those of the new structures. The new structures will, of course, embrace non-solicitors as well as some solicitors and they may reach out into areas other than traditional legal practice, so there is a question whether the scheme would apply to non-legal activity and so on. All this seems to be somewhat vague at the moment.
The Law Society also points to the need to consider the impact of a recent decision by the authority to transfer the cover for non-applied firms from a risk pool to the compensation fund. That apparently exposes the fund to a new type of claim relating to negligence and negligent actions.
There is also a question of whether the present management arrangements are up to dealing with these complex new positions. I acknowledge that none of this is the direct responsibility of the department, but given that the department, under the previous Government and now under the current Government, is establishing the framework, it is surely necessary for the department to take an active interest to ensure that a satisfactory position is achieved. We do not want a position in which either the legal profession is paid, as it were, for the possible errors of the new structures, or in which people find it difficult to obtain compensation when they should have it. While it is obviously necessary for this extension to take place, I urge the Minister to indicate that his department will be conscious of the need to ensure, as far as it can, that the SRA carries out what is expected of it within that timescale and no later and that it has adequate professional and technical resources to do the job.
Lord McNally
My Lords, I thank the noble Lord, Lord Beecham, for that response. I am aware of his long and detailed knowledge of the solicitors’ profession, so I was trembling a little that I was going to be baffled by professional science. He indicated, I must say, a slight irritation on my part that one looks pretty silly when one puts in a sunset clause then has to come back and say, “Please, lift it”. The intention was good—it being thought that the presence of a sunset clause would produce a sense of urgency in the Solicitors Regulation Authority—but that was, perhaps, overoptimistic. Not putting in another sunset clause is common sense—better that we tell them to get on with it—and I fully take his point that my department should take a close interest in the matter. The review is primarily a matter for the SRA and details of the review will be in its strategic plan. However, the Legal Services Board, the oversight regulator of the legal services framework, has indicated that it expects the SRA to report on progress. I assure the noble Lord that I will keep an eye on progress, because I do not want to come back here to tell him that there has been none.
The SRA has assured us that it is now in a better position to complete a fundamental review of its compensation arrangements, which will determine the best solution for the compensation arrangements, not only for ABSs, but for traditional firms. It is therefore too early at this stage to get any views to dictate the outcome of the review. The SRA will note the irritation from all bodies—the Law Society, the LSB, the MoJ and the Official Opposition—and I hope that that, even more than a sunset clause, will spur it to action. Work on the review has started and the detailed scope of the project has been developed. The SRA held a meeting with the LSB to discuss and agree the detailed scope and the project scope and methodology has been approved by the financial protection committee, a sub-committee of the SRA board. A summary of the scope and methodology will be published on the SRA website in December 2012.
The project has now entered a research phase and initial meetings with stakeholders are being held. The SRA is committed to transparency of research in this area and has undertaken to publish information and research findings throughout the project. The SRA was able to dedicate policy resources to the compensation arrangement review from June 2012. However, data-gathering started earlier, in spring 2012. I can assure the Committee that work is now under way, and I and the MoJ will continue to keep a very close interest in progress.
Child Abuse: Waterhouse Inquiry
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Lord Lloyd of Berwick
To ask Her Majesty’s Government, further to the Statement repeated by Lord Taylor of Holbeach on 6 November (HL Deb, col. 893), whether they will reconsider their appointment of a “senior independent figure” to investigate whether “the Waterhouse Inquiry was properly constituted and did its job”.
The Minister of State, Ministry of Justice (Lord McNally)
No, my Lords. Mrs Justice Macur’s review will proceed with the terms of reference laid before this House last Thursday.
Lord Lloyd of Berwick
My Lords, does the noble Lord agree that in view of Mr Steve Messham’s withdrawal of any allegation against Lord McNally—
Lord Lloyd of Berwick
I had better start that question again. Does the noble Lord, Lord McNally, agree that in view of Mr Steve Messham’s withdrawal of any allegation against Lord McAlpine, there is no longer any need for another High Court judge to go over the work of Sir Ronald Waterhouse 15 years ago? On the contrary, we should all be grateful for his impeccable conduct of that inquiry and the thoroughness of his report. Will the Minister tell the House what, if any, inquiries the Prime Minister made about Mr Messham’s credibility before announcing another inquiry into the same matters on 5 November?
Lord McNally
My Lords, I sincerely hope that that well known twitterer on the Front Bench opposite has not put my name on to this. I can understand where the noble and learned Lord is coming from. When we ask a senior judge to carry out an inquiry and they do so with the thoroughness with which the Waterhouse inquiry was carried out, there is a certain duty to respect the integrity of that work. I hope that the noble and learned Lord will also accept that the situation that we faced was not just that of a single individual coming forward but of a large amount of accusations being bandied around and a great deal of public concern. The Macur review terms of reference have been more widely drawn. Mrs Justice Macur will look at whether any specific allegations of child abuse within the terms of reference of the Waterhouse inquiry were not investigated. Quite frankly, the strength of public feeling justifies us going through with the Macur review.
Lord Mackay of Clashfern
My Lords, what was the basis for concluding that there was any question of whether the Waterhouse inquiry did its job properly when this announcement was made? I knew Sir Ronald Waterhouse as a very distinguished and conscientious judge. I was in touch with him when he was doing this inquiry, and I know the terrific effect it had on him, from the harrowing nature of his work in that connection. I feel very strongly that it is utterly wrong to cast aspersions on that work unless there is some basis for doing so which one can rely upon.
Lord McNally
My Lords, that statement, coming from such a source, reinforces what I said. When we have asked a distinguished judge to carry out an inquiry, we have to be extremely careful as to whether they can be second guessed. I do not think that anything that the Prime Minister or the Government are doing calls into question the integrity of the Waterhouse inquiry. As we always are when distinguished judges take on these difficult tasks, we are in his debt for doing so. However, the review of the Waterhouse inquiry will look at whether any specific allegations of child abuse were not investigated. The serious allegations that have been made merit a further thorough investigation.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister, who has tried to bring some clarity to a question that I asked when the Statement was made. I sought to know what was meant by,
“whether the … inquiry was properly constituted and did its job”.—[Official Report, 6/11/12; col. 896.]
He will understand the concern that has been raised about that kind of inquiry. Does that beg the wider question of whether all these separate inquiries that are taking place—I think there are 10 in total now—should be constituted into one overarching inquiry, where we can look at the relationship between the different investigations? Getting to a position where we could deal with all the allegations in one overarching inquiry would bring together the kind of issues that will have to be dealt with to stop this kind of abuse happening again.
Lord McNally
It is true that there is now a large number of inquiries. The noble Baroness says 10 and my brief says nine, but I take the point. The Government did not rule out an overarching inquiry, but there is a time to pause on this. Some of the accusations have been put into perspective by rushing to judgment in an overheated way, through Twitter and the new technologies that we live in. Those in authority need to have confidence. We are talking about child abuse; a very serious crime, which people who have evidence of should report to the police. It is not a responsibility of judicial inquiries to find wrongdoers. It is for the police, and if there are people with evidence, they should take it to the police.
There is public concern about whether Waterhouse missed anything. We have asked a distinguished judge to do a specific task in relation to that: to look at whether any specific allegations of child abuse were missed by that investigation and then to make recommendations to the Secretary of State for Justice and the Secretary of State for Wales. That is the right place to be in.
Baroness Butler-Sloss
My Lords, I read the report. I was a colleague of Sir Ronald Waterhouse. He produced, as both the noble and learned Lords have said, an impeccable report. If the terms of reference were, “Are there allegations that were not put to Sir Ronald that have now arisen?”, they would be acceptable. However, the Government have—and the Minister really should be taking this on board—cast aspersions on the report suggesting that he did not do a good enough job. If the terms of reference are changed, which I would ask the Minister to do, to say that any allegations not made to Sir Ronald Waterhouse should be investigated, I suspect the House would be a great deal happier.
Lord McNally
My Lords, three of our most distinguished judicial Members have spoken out very strongly about Sir Ronald Waterhouse’s integrity. I associate myself completely with them. That was not the situation we faced. We faced growing public concern about whether child abuse allegations had not been investigated. The judge in charge of the new inquiry is taking time to look carefully at what she needs to do the job and will look again to see whether the plethora of allegations that are around need re-examining and whether something was missed in the details of inquiry. I do not accept that that impugns the integrity, processes or findings of the original report. We dealt with a situation of real public concern. I hope the way Mrs Justice Macur now takes it forward will meet that public concern.
I repeat that I associate myself entirely with the comments of senior judicial colleagues about Sir Ronald Waterhouse and his work. It is important to get this on the record. We are indebted to the senior judiciary for so often being willing to take on these very difficult tasks on behalf of society as a whole.
Crime and Courts Bill [HL]
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The Minister of State, Ministry of Justice (Lord McNally)
Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.
Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.
As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.
It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.
A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.
Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.
The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.
Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.
I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.
Lord Goldsmith
Perhaps I may say a sentence because it may help the noble Lord and his officials. I had in mind in Amendment 29 that the DPA should say, “And if you fail to comply with this, then the prosecution can take place and you may be proceeded against”. That is the sort of consequence I am thinking of. I understand that the noble Lord is talking about something else. So with that expansion of my meaning, I am grateful that it will be looked at again.
Lord McNally
That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.
Lord Marks of Henley-on-Thames
In relation to my amendments, I understand what the Minister has said. The only point I would make is that it is possible to take the middle position, which is really the position that the noble and learned Lord, Lord Goldsmith, has put and which my noble friend has said he will look at. As the noble and learned Lord suggests, the anomaly is where you can have an all-or-nothing financial penalty that still exists, so it must be sensible to have a variable penalty if the noble Lord does not accept my Amendment 24.