Justice and Security Bill [HL]
Lord McNally Excerpts(12 years, 2 months ago)
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Lord Foulkes of Cumnock
This is in order. Surely the Deputy Leader of the House can answer.
The Minister of State, Ministry of Justice (Lord McNally)
You are not in the other place now and you are abusing the procedure of this House. That matter is not before the House at the moment.
Lord Foulkes of Cumnock
With respect, we are considering the business of the House, and when my noble friend Lord Barnett raised the matter previously, he was abused by the Leader of the House for doing so. My noble friend was told by the Leader of the House that consideration of the business of the House—currently relating to consideration of the Justice and Security Bill—was the point at which to raise these matters. Surely the Deputy Leader of the House can give us an answer. Will we get an answer to a PNQ if it is tabled later this week?
Baroness Royall of Blaisdon
My Lords, perhaps I may explain to my noble friend and other noble Lords that to date we do not have business questions in this House. It is very difficult to raise them and we must ask the Procedure Committee to look at the matter. I agree that there should be space to ask business questions. I should also explain that PNQs are a matter for the Lord Speaker of this House, but I advise the Government that tomorrow I will certainly table a PNQ on the west coast main line for consideration by the Lord Speaker, because it is imperative that we receive answers to these questions.
Lord McNally
That was an extremely helpful intervention from the Leader of the Opposition. Let us move on.
Lord Barnett
My noble friend Lord Foulkes referred to me and the Leader of the House. I should explain to the House that I have since had a personal apology from the Leader of the House, although I cannot help thinking that it should have been in the House.
Lord McNally
I take note of that. If we go down the route of business questions, perhaps without the abuse that goes on in the other place, we could have discussions in the usual channels.
Criminal Injuries Compensation Scheme 2012
Lord McNally Excerpts(12 years, 4 months ago)
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Lord McNally
That the draft scheme laid before the House on 2 July be approved.
Relevant documents: 6th Report from the Joint Committee on Statutory Instruments, 8th Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Ministry of Justice (Lord McNally)
I shall speak also to the draft Victims of Overseas Terrorism Compensation Scheme 2012.
Our vision for the criminal justice system is that it is able to respond in a flexible way to the needs of victims and the communities it serves. This must include proper protection and support for victims to help them recover and to overcome the effects of crime. In some instances, financial assistance will play a part in this recovery process. Successive Administrations have grappled with these schemes. Our system of criminal injuries compensation goes as far back as 1964 when awards were made on the basis of common law damages. When the then Home Secretary, Michael Howard, broke the link with common law damages some 30 years later by introducing the first statutory scheme, based on a tariff of injuries, it cost the Government £179 million a year, or more than £250 million at today’s prices. The previous Administration sought to reform the tariff scheme in 2005 by refocusing payments on the most seriously injured and removing less serious injuries. In the end these proposals were never implemented.
We are still resolving claims from before 1996 that were made under the pre-tariff system. When this Government came into office there were estimated liabilities of nearly £400 million. This Administration are now tackling this and are allocating funding to cases so that awards are paid as these remaining cases come to an end. Last year about £237 million was paid in such cases. A total of £449 million was paid in compensation last year—the largest ever in a single year—after the Criminal Injuries Compensation Authority was provided with additional funding. This includes payments to cases under the current scheme and also to pre-tariff cases.
However, despite this cash injection, total liabilities currently stand at around £532 million. This includes an estimate of the cases that are likely to fall due in the future but have not yet been lodged with the Criminal Injuries Compensation Authority. It also includes the remaining rump of pre-tariff cases. Nevertheless, with new liabilities arising at around £200 million each year under the 2008 scheme, this simply is not sustainable in the current economic climate. The revised domestic scheme will focus, as the Government were considering focusing in 2005, scarce resources on those victims most seriously affected by the injuries they suffer as a result of deliberate, violent crime committed in England, Wales and Scotland. This is part of a long-term aim to put this scheme on a more sustainable footing.
We envisage that the cumulative effect of these changes should help deliver savings of an estimated £50 million a year to the taxpayer. This does not mean we are reducing the overall spend on victims. The Government are committed to substantially increasing the amount offenders contribute to victims’ services. In England and Wales, we intend to raise up to an additional £50 million a year through the victim surcharge and other financial impositions, investing this money in support services for victims.
The noble Baroness, Lady Royall of Blaisdon, will speak to her amendment shortly but I would like to make it clear that our proposals will protect injury payments to victims with the most serious injuries. In addition we are protecting payments to the bereaved, to all rape victims, to victims of any other sexual assault and to those, including victims of domestic violence and children, who are subjected to a repeated pattern of abuse. We are removing payments from those with less serious injuries.
The additional money that we will raise from offenders will be used to pay for new services for victims. We believe that it is much better to use this money quickly to support victims who are trying to cope with the impact of crime than to give people small amounts of money for minor injuries some time after the event.
Noble Lords will have seen a number of briefings about the reforms to the scheme including on behalf of postal workers and shop workers. I want to acknowledge the valuable job that these people do, often in very difficult circumstances. However, as with any other applicant to the scheme, if their injuries are sufficiently serious they will still be eligible and I hope that the additional services funded by offenders will better support those with minor injuries.
We have listened to those who responded to our consultation and have made changes to some of our proposals as a result, as set out in the Government’s response. Notably we have changed our original proposals relating to payment for those with criminal convictions and to establishing a connection to the UK.
Let me make the House aware of the changes that we are making—first, on eligibility. Eligibility is tightly defined in the draft scheme so that only those direct and blameless victims of crime who fully co-operate with the criminal justice process may obtain compensation under the scheme. We will continue to pay secondary victims under the scheme in certain circumstances. Applicants will need to be able to demonstrate a connection to the UK through one of a number of factors, though as a result of consultation responses, we have removed the original requirement that an applicant be resident in the UK for six months prior to the incident that led to their injury. Bereaved relatives of victims who die as a result of their injuries will also continue to be able to apply as long as they meet the revised eligibility criteria. Those with unspent convictions will not be able to claim if they have been sentenced to a community order or have been imprisoned. Those with other unspent convictions will be able to receive an award only in exceptional circumstances. This is a change from the options put forward at consultation, following comments made by respondents. These changes to eligibility are in line with the core purpose of the scheme of compensating blameless victims of violent crime.
Secondly, on the tariff, we want to strike the right balance between protecting the most seriously injured and making reductions to the overall cost of the scheme. So tariff payments will be available only to those most seriously affected by their injuries and for those who have been the victim of the most distressing crimes. What this means in practice is that bands 1 to 5 of the current scheme have been removed; bands 6 to 12 have been reduced; and bands 13 and upwards—to band 25—are protected in their entirety at their current levels. Tariff awards for fatal cases, sexual offences, patterns of physical abuse and loss of a foetus are also being protected at their current levels—no matter where they currently appear in the tariff. As a result of a consultation response from the First-tier Tribunal we have also broken down some of the payments made for degrees of paralysis with the aim of ensuring that we avoid both over and undercompensation in these very difficult cases.
Thirdly, let me turn to loss of earnings. These payments do not currently reflect actual loss for all applicants, being capped at a salary of one and a half times the median gross weekly earnings but already making up a significant proportion of the costs of the scheme. The new calculation will be a flat rate based on statutory sick pay which should be simpler to administer. Payments will no longer be subject to deductions for benefits. These payments will be available only to those who can no longer work or who have very limited capacity to do so, in line with the focus on those most seriously affected by their injuries.
Fourthly, there are no major changes to these special expenses payments. They will continue to be available for the same categories as under the current scheme, with the exception of private healthcare. We chose to retain these payments because they are generally awarded to those who suffer the most serious injury. However, we have made it clear that the scheme should be one of last resort in relation to special expenses, and that payments will be made only if the claim is reasonable. Fifthly, with regard to payments in fatal cases, we are protecting the awards for bereavement and parental services payments. In the interests of consistency and fairness, dependency payments in fatal cases will be made in line with the revised plans for loss of earnings. The scheme can never compensate someone fully for the death of a loved one but we believe that some financial compensation is appropriate in these cases. Reasonable funeral payments will be made up to a maximum of £5,000.
Finally, I turn to the process. One of the aims of this reform is to make the scheme easier for applicants to understand. For the first time the evidence required to make a claim is being put on the face of the scheme. We are tightening the circumstances in which the authority will meet the costs of obtaining medical evidence and reducing the timescales for submission of review and appeal applications.
Lord Christopher
My Lords, I am anxious not to repeat what has been said, but there is little doubt that we have, day by day in recent months—indeed for a year or two—heard nothing but sad news for those who are represented by the people that this order will affect. There is a callousness about so much legislation at the moment that is very hard to believe. Perhaps there has been a little hope raised by the noble and learned Lord, Lord Howe, that the heart of the party is not wholly stone. Having heartily enjoyed a number of years negotiating with him across a table, usually, I think, to mutual benefit, my feelings are, come back, Geoffrey, all is forgiven.
What is the benefit that has been received by the country for all these cuts? The news at one o’clock was that we are now in the third quarter of recession. There is no sign at all that what is being done by the Chancellor is having any material helpful effect. It is extremely sad that we are now dealing with what, in money terms, is a minority issue to the Treasury, but is a very significant issue to those affected by these cuts. We have a useful audience in the Gallery, but I think it is important for the record that we have some indication of what we are talking about, because there is no precision, as things stand.
There have been two broad groups affected by attacks. I was surprised that the number is as high as it is in the USDAW field. We certainly had them in the days when I was responsible for the staff in the Revenue. They could be serious and every attempt was made by the department to ensure that these were kept to a minimum. What sort of injuries are we talking about for those who are receiving the higher award? We are talking about significant facial scarring; permanent brain injury resulting in impaired balance and headaches; penetrating injury to both eyes; fractured joints including elbows, both knees and vertebra, resulting in continual significant disability; and a punctured or collapsed lung. This is the nature of the injuries for which there is now to be significantly reduced compensation.
I conclude with one of three examples provided by USDAW of the kinds of practical changes which will take place. I shall read about Simon, aged 33, the manager of a convenience store in Stoke on Trent who risked his own safety when he disarmed an axe-wielding man during an attempted robbery. He says:
“I saw a man at the till waving an axe and shouting at the checkout assistant. As I went to grab the handle of the axe there was a bit of a tussle and it fell to the floor. I managed to kick it out of the way. Two customers came to my aid and we held him down until the police arrived. He became more aggressive and started lashing out, then he bit my leg”.
Simon received £1,250 compensation for his injuries and the mental trauma he suffered, which, I suspect, was considerable. He received a public bravery award from the local police. Under the new proposals, he would receive nothing. I regard this as utterly outrageous, as I am sure does the Gallery, and it is high time that there was a rethink and that these sorts of changes were removed from your Lordships’ agenda.
Lord McNally
My Lords, first, I say to the noble Lord, Lord Christopher, that the reality, which apparently still takes time to sink in across the House, is that we are all a lot poorer than we thought we were four years ago. Whichever Government had come in would have carried out drastic cuts in public expenditure. That has been acknowledged by the Opposition in their moments of candour. Therefore, every time that the Government come before the House with some saving in public expenditure, the Opposition say, “These are not the kind of cuts that we would have made”. The Liberal Democrats have neither the resources nor the inclination to do this, but I know of parties who keep a running total of cuts in expenditure which the Opposition would not have undertaken, and it adds up to something that questions their economic competence.
As for my noble and learned friend, Lord Howe, I hear his story. I have been in a few small parties myself, but the Aberavon Conservatives, which he led, must have been almost of Liberal Party size in its gatherings. The scheme that he pioneered in the 1960s cost £6 million. We are debating a scheme that costs more than £200 million. Also included in his long and distinguished career was a period as Chancellor when, like me, he must have stood at Dispatch Boxes listening to the impact of cuts that were necessary at the time. That is one of the responsibilities of government.
Lord Stoddart of Swindon
I have a simple question. What would £6 million be in today's money?
Lord McNally
That is in current prices. The actual scheme cost less than half a million pounds when first introduced, so I was not trying to belittle it. We have all known schemes which have been introduced with the best of intentions but have had long-term consequences. As the noble Baroness acknowledged, the previous Government took a hard look at this in 2005 and then backed off from making similar decisions.
Lord McNally
I suggest that some of the roots of the economic problems that we later faced was that they backed off too many difficult decisions—something that we are not doing.
The noble Baroness asked me how the ex gratia schemes compare. People who are victims of terrorist attacks which took place between 1 January 2002 and 16 October 2012 will, in general, have until 16 October 2012 to claim. The scheme is based on equivalence to those in tariffs under the existing domestic scheme. Eligibility is restricted to those with an ongoing disability as a direct result of an injury sustained in a designated act. Only injury payments are available, in accordance with the tariff of injuries; bereaved relatives are not eligible for an award. Tariff payments are in line with those in Criminal Injuries Compensation Scheme 2008. The maximum payment for a single injury on the tariff of injuries which forms part of the scheme is £250,000.
The noble Lord, Lord Davies, raised the issue of the impact on shop workers, as did other noble Lords. Shop workers, and all trade unionists who have been named, are still covered by the scheme, but not for small payments for minor injuries. I heard the example given by the noble Lord, Lord Christopher. Perhaps those in the Gallery also ask whether £1,250 for a very noble, brave act is not enough. Should we build into a scheme which is supposed to address real victims of crime pay-outs of significant sums—not life-changing but, for low-paid workers, significant sums—for injuries that also are not life-changing? We are removing the lower end.
Lord Christopher
The examples, which the noble Lord says that he has read, are life-changing.
Lord McNally
My Lords, those are examined by CICA under the scheme and some of them, frankly, I cannot believe would be outside the scheme, but that is something that the authorities take account of.
The reforms that we have discussed today not only put the criminal injuries compensation scheme on a more sustainable financial footing but will achieve our aim of focusing compensation on those most seriously injured as a direct result of deliberate violent crime.
I touch on a couple of other points made. The noble Baroness, Lady Royall, asked what happens with multiple injuries. The situation will remain as now: 100% for the most serious injury; 30% for a second-rated injury; 15% for the third most serious injury. The noble Lord, Lord Davies, and others mentioned shop workers. They are treated as other victims are, but where they suffer long-term mental injury lasting for more than six weeks, they will still be able to claim. The noble Lord, Lord Davies, heard the cost of running CICA. The time to process claims is seven to eight months for a first decision and about five months to review a decision.
I heard what the noble Baroness, Lady Royall, said: that somehow the backlog is not real. What is real is that we paid £480 million—the largest sum ever—in compensation this year in part to deal with claims that go back beyond 1996.
Lord Brookman
I say to the noble Lord, Lord McNally, that it is quite evident to me and, I am sure, to the whole Chamber and the Gallery, that you have not had one voice from the coalition government Benches in support of what you are saying. It is obvious that in this Chamber there is strong resentment about the changes proposed, even from your Benches.
Lord McNally
You may make that assumption. We will see what happens when we come to a vote. I am fully aware, as has been readily acknowledged, that the trade unions, which have been readily represented on the opposition Benches—and rightly so—today have argued against the changes. I understand that. I understand less the willingness of those on the government Benches—sorry, the opposition Front Bench—to leap on this passing bandwagon.
It is no use pretending. We are dealing with relatively small payments from the scheme for temporary injuries. In return for that change—I notice that the noble Baroness did not mention this—we are substantially reforming the amount of money that will go into victim support. I think that I will have support in this House for this concept that rather than paying small amounts here and there—small penny-packet amounts to various minor injury claims; some maybe justified, some very much less so—it is better to devote that money to real victim support and to dealing with the trauma of crime at the sharp end, when it happens, in a way that is effective. That is the basis of these reforms.
I understand where the trade union members are coming from, but I do not know where the noble Lord, Lord Stoddart, is coming from when he throws in overseas aid. One of the things I am very proud of is the way that this Government have sustained overseas aid.
Lord Stoddart of Swindon
I gave that example because I had just received an Answer that we are going to spend a further £178 million in Afghanistan—that is, after billions and billions of pounds for our military presence there. I raised this amount because we have people who need to be looked after in this country. We are talking about some of them now. If we can afford to spend £178 million to help people in Afghanistan, which is fine, surely we can find an extra few million to help unfortunate people in our own country.
Lord McNally
We are finding it for unfortunate people in our country, but Afghanistan remains one of the poorest countries in the world. I am proud of our aid programme there. If the noble Lord rereads what he said he will probably find echoes of that great conservative sentiment of “hang ’em and flog ’em” and “don’t give it to foreigners”.
Lord McNally
Noble Lords know exactly what I am talking about. In the past, in some of the battles over civil liberties, human rights and the way that we treat people in overseas aid I would have relied on the Labour Party. The Labour Party has gone a long way from the one that I remember in many of these areas.
Lord McNally
We have had the whole gamut today of the Labour Party never supporting a cut and never facing up to a responsibility. I listened to what the party opposite has said, and we have taken the tough decisions. Not only have we done that; in this case we have also made the sensible decision to move victim support to where it is needed, at the sharp end. We are finding the resources by these reforms and I commend them to the House.
Baroness Royall of Blaisdon
My Lords, I answer this debate as the Leader of Her Majesty’s Opposition, a very responsible Opposition. I am also a proud trade unionist. I am not leaping on a bandwagon that was put together with a bunch of trade unionists. I am doing what I believe to be right and I am proud that the trade unions have sought to support the workers whom they represent. However, I have to say that many of the representations that I received prior to today’s debate were from lawyers who are also concerned about victims.
Today we are talking about victims. Yes, we are living through a financial crisis; we are living through a double-dip recession which one might say was made in Downing Street. However, as noble Lords will know, my party is rightly being extremely careful in relation to financial commitments, precisely because we are entirely realistic about the financial situation that this country faces.
The Minister says that we are against all cuts. That is not true. We simply believe that some of them are too far and too fast. When making financial decisions one is also always faced by a choice. We believe that the choice that the Government have made in relation to victims is the wrong one. Victims do not choose to be victims. They have suffered through no fault of their own. In proposing the Draft Criminal Injuries Compensation Scheme 2012, the Government seem to be putting deficit reduction before victims. I wish to test the opinion of the House.
Victims of Overseas Terrorism Compensation Scheme 2012
Lord McNally Excerpts(12 years, 4 months ago)
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Lord McNally
That the draft scheme laid before the House on 10 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
Lord McNally Excerpts(12 years, 4 months ago)
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Lord McNally
That the draft orders laid before the House on 7, 10 and 14 May be approved.
Relevant documents: 2nd and 3rd Reports from the Joint Committee on Statutory Instruments, 2nd, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 18 July.
Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012
Lord McNally Excerpts(12 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012.
Relevant documents: 3rd Report from the Secondary Legislation Scrutiny Committee; 3rd 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 abolish two of the Ministry of Justice’s public bodies: the Crown Court Rule Committee, which I shall hereafter refer to as the CCRC, and the Magistrates’ Courts Rule Committee, which I shall hereafter refer to as the MCRC. This omnibus order provides for the abolition of these bodies, with no transfer of functions in the case of the MCRC, and in the case of the CCRC, with a transfer to the Lord Chief Justice of the function of making rules for the Crown Court.
The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims were to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and its functions to be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case of the two court rule committees, it was considered that their functions needed to be carried out but that they could be effectively carried out by, or in consultation with, other rule committees. The Ministry of Justice felt that retention of the committees was therefore unjustified, and they were included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.
I will give some background on each committee, beginning with the CCRC. The Crown Court Rule Committee was created by the Supreme Court Act 1981 to examine any proposed amendments to Crown Court rules and, together with the Lord Chancellor, to make the necessary rules for the court. However, the committee’s role in making criminal rules has been superseded since that time by the creation of the Criminal Procedure Rule Committee in 2003, leaving it with a role in relation to only a few civil rules. Due to this reduced role, the committee is now rarely used and the Ministry of Justice therefore proposes that it be discontinued.
The Government recognise that the committee’s limited residual functions, though few, should still be carried out and require both technical expertise and impartiality. This order therefore transfers these functions to the Lord Chief Justice, who will be free to consult the other court rule-making committees, and any other person or body as he sees fit, before making rules in relation to the Crown Court. This transfer of function removes the need to maintain a separate committee for such a small workload, which reflects the wider aims of the Public Bodies Act to cut out unnecessary bureaucracy. It also means that a greater range of expertise will be available to the Lord Chief Justice, which is a more effective way to make court rules. This approach has been agreed in principle by the Lord Chief Justice.
The abolition of the CCRC and the transfer of its remaining functions to the Lord Chief Justice formed part of a Ministry of Justice consultation that took place between July and October 2011. Nine responses were received regarding the proposal, of which only a few opposed abolition, with the chief concern being that abolition would lead to a loss of people with appropriate expertise whom the Lord Chief Justice could consult before making rules.
However, as I have spelled out, the order will allow the Lord Chief Justice, after abolition, to consult any rule committee and any other person or body as he sees fit when making rules. As these committees have considerable rule-making experience, I am satisfied that there will be more than ample expertise on which the Lord Chief Justice will be able to call—indeed, there will be a wider range than is currently the case. For this reason, the Government see no reason to alter their proposal to abolish this committee.
The Magistrates’ Court Rule Committee is the second body addressed within this omnibus order. The MCRC was established under the Magistrates’ Courts Act 1980 as a body to be consulted by the Lord Chief Justice before he makes rules in relation to these courts. The MCRC is also consulted, along with other rule committees, before certain rules are made under the Courts Act 2003 relating to justices of the peace and justices’ clerks. The committee does not itself make rules but exists as a consultative body alone.
However, since the MCRC was established, the creation of the Criminal Procedure Rule Committee and the Family Procedure Rule Committee has greatly reduced its remit. The only remaining function of the committee is to be consulted on rules relating to civil non-family proceedings in the magistrates’ courts. There are relatively few such proceedings, and the need for amendments to the rules is very infrequent. The committee was called upon twice in 2009, not at all in 2010 and twice in 2011. This does not justify the retention of a dedicated committee.
Lord Beecham
My Lords, I have no problem with the substance of this order. However, the Secondary Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:
“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.
The committee made much the same point in relation to this order, saying:
“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.
Of course, I am being repetitive at the moment but that is because it is necessary to be so.
The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.
Lord McNally
I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.
Data Protection (Processing of Sensitive Personal Data) Order 2012
Lord McNally Excerpts(12 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committees
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the order before us today specifies circumstances in which sensitive personal data may be processed in accordance with the Data Protection Act 1998. This is a technical order but the work it relates to is of the utmost importance. The circumstances set out in the order relate to arrangements put in place for disclosure of information about the Hillsborough disaster, and in particular the work of the Hillsborough Independent Panel. This order removes any doubt that sensitive personal data relating to the Hillsborough disaster can be disclosed to the panel and publicly, where disclosure is necessary to give effect to the disclosure protocol which guides the panel’s work.
Before setting out further details about this order it may be helpful for noble Lords if I set out some of the background to the work of the Hillsborough panel. As noble Lords will be aware, 96 people were killed and 766 other people injured as a result of this tragedy, which remains the deadliest stadium disaster in British history. Since 1989, there have been a number of investigations and inquiries into the tragedy, but a sense has remained on Merseyside and beyond that the full story of Hillsborough has not been told. Because of the enormous strength of public feeling, the previous Government established the Hillsborough Independent Panel, with a remit to ensure maximum possible disclosure of records relating to the disaster. I want to reiterate that the current Government fully support the panel and its work. Indeed, this order has very much been made in that spirit.
One of the roles of the panel, chaired by the right reverend Prelate the Bishop of Liverpool, is to oversee and co-ordinate the disclosure of records from public agencies including the police, and from government, including Cabinet documents. Some of this material consists of “sensitive personal data”, as defined by the Data Protection Act 1998. It is the sharing during the panel process and possible subsequent public disclosure of this material which concerns us today.
In the context of the Hillsborough Independent Panel’s disclosure of records, much sensitive personal data, such as medical records of survivors, will quite properly not be placed in the public domain. But the publication of other records would clearly add significantly to the public’s understanding of the events surrounding Hillsborough. Although I am, quite rightly, not aware of the details of these records, I understand that they include, for example, papers relating to various legal processes which arose as a consequence of the disaster. For these records, organisations within the scope of the panel’s work agreed that publication is in the public interest but want to be absolutely clear that such disclosure is capable of meeting the requirements of the Data Protection Act 1998.
The Data Protection Act 1998 gives individuals several rights in relation to their personal and sensitive personal data. It also places obligations on all organisations to ensure that, where personal data is processed, the impact of processing on the individual is appropriately considered. The Act also allows for the making of an order to create conditions that will enable disclosure where those existing conditions in the Act are deemed insufficient.
The order before us today specifies the circumstances where the processing of sensitive personal data may take place where that processing is disclosure of information relating to the Hillsborough disaster and that disclosure is necessary to give effect to the disclosure protocol which governs the work of the Hillsborough panel. The order and the protocol work in tandem and will, in effect, act as a two-stage process to determine disclosure. In considering whether processing sensitive personal data is necessary to give effect to the panel’s disclosure protocol, an organisation will have to look at the facts of each case and balance the benefits of disclosure against any impact that disclosure might have on an individual. The order helpfully ensures that this balance can be assessed with particular reference to the overall aims of the Hillsborough panel.
The order will not guarantee that any and all disclosures of sensitive personal data contained in documents relating to the Hillsborough disaster will automatically be lawful. Because of the way the Data Protection Act 1998 works, it will be for the organisations concerned to decide, once the order is made, whether the new conditions it sets out are met, so an organisation or the panel will need to look at whether the proposed disclosure is truly necessary to give effect to the panel’s arrangements. If it is met, the relevant organisation would also need to satisfy itself that the disclosure will comply with the rest of the Act and its principles, and any other relevant law.
It is clearly not the intention of the Government in making this order, or the Hillsborough Independent Panel in requesting it, that sensitive material is disclosed inappropriately or in a way that might cause distress to the families of the bereaved and those injured in this disaster. Therefore, I would like to assure noble Lords, in response to a concern raised in another place, that where sensitive personal information which is not otherwise publicly disclosed as part of the panel process is placed into the National Archives or local archives, all the safeguards which protect personal data will apply to this material. This includes the requirements of the Data Protection Act itself. That means, in particular, that it will not be disclosed to the general public, or at least until it can be guaranteed that its release would not cause distress or harm.
The Ministry of Justice and the Home Office have worked with the Information Commissioner’s Office and officials from the Hillsborough panel to seek a resolution to the data protection issues which have been raised. The order under discussion today is the result of that work. All parties are content that the order, if agreed by Parliament, provides a suitable legal channel for disclosure and is a proportionate response to the issue.
I am sure that I speak for all sides of the Committee when I say that the promise made to those affected by the Hillsborough disaster must be honoured, and that this Government have made a clear statement that we are committed to facilitating the fullest possible disclosure. I commend this draft order to the Committee and I beg to move.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.
On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.
The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.
Lord Beecham
I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.
Lord McNally
I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.
One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
Lord McNally Excerpts(12 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, as noble Lords will be aware, the Rehabilitation of Offenders Act 1974 exists to support the resettlement of offenders into society where they have demonstrated that they have put their criminal behaviour behind them. After a specified period of time the Act declares most convictions spent and an ex-offender need no longer declare them. When they apply for most jobs, or seek insurance, they need not disclose this information and subsequently not suffer potential discrimination as a result of it.
The Committee will recall that we recently brought forward the first reforms to the Act for more than 40 years following a thorough and evidence-based review of the Act in the light of current sentencing practices. The amendments extend the scope of the ROA so that custodial sentences of up to and including four years can become spent, and in most cases reduce the time before which convictions can become spent. We will commence the reforms as soon as the necessary changes to procedures and processes have been put in place. This is likely to be spring 2013. The Government’s reforms restore the balance between the need for public protection and the freedom for an ex-offender to put their past behind them.
The exceptions order to the Act is a key part of maintaining this balance. The order lists certain activities that are exempt from the Act, such as work that involves significant contact with children or vulnerable adults. This means that where an individual is applying for a job within a specified activity, their full criminal record history is available to the employer. If an individual has a conviction that has been declared spent, the prospective employer can then see it.
We must be careful not to jeopardise the operation of the Rehabilitation of Offenders Act. The activities listed on the exceptions order are only those that present an opportunity for people involved to cause harm to the public where there is evidence that there is a real—rather than potential—risk to children, vulnerable individuals or some other particularly sensitive area of work. It is important to note that for the vast majority of purposes and employments, the Rehabilitation of Offenders Act still applies.
The careful balance between maintaining public protection and allowing offenders to lead law-abiding lives by removing barriers to employment needs to keep pace with the present. The exceptions order must therefore remain up to date with developments elsewhere. The order presented today is an illustration of the Government seeking to maintain this balance in line with recent changes to legislation and does not represent a significant extension to the scope of the order.
The first amendment adds the role of police and crime commissioner to the order, ahead of the first elections for this office in November. Police and crime commissioners will set the budget and priorities for the police force within their local area and will hold the local chief constable to account for performance and delivery. During the passage of the Police Reform and Social Responsibility Bill, now an Act, there was cross-party support in both Houses for the role of police and crime commissioner to be held to a higher standard in terms of disqualification on the grounds of previous convictions. Members of the police force are themselves held to a higher standard and it is crucial for a police and crime commissioner, who has oversight of the force in their local area, to be able to command public trust.
An individual is ineligible to hold the post of police and crime commissioner if they have any conviction for an imprisonable offence, whenever incurred and regardless of whether a sentence of imprisonment was actually imposed. The amendment to the exceptions order ensures that all candidates for the role of police and crime commissioner have to disclose all convictions when signing a declaration of eligibility to stand for election. Criminal records checks can then be made to verify this information. If a candidate is found to have given false information, they will be removed from post. Although this amendment extends the scope of the order to include police and crime commissioners, the numbers affected by the change are very small. The Electoral Commission will publish guidance to candidates and returning officers to include specific advice on disqualification and eligibility.
Lord Thomas of Gresford
My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.
Lord McNally
My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.
Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012
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Lord McNally
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012.
Relevant documents: 2nd Report from the Secondary Legislation Scrutiny Committee; 2nd 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 abolish two of the Ministry of Justice’s public bodies: Her Majesty’s Inspectorate of Court Administration, which I shall hereafter refer to as HMICA, and the Public Guardian Board, which I shall hereafter refer to as the PGB. This omnibus order provides for abolition of these bodies, with no transfer of functions in the case of the PGB and, in the case of HMICA, with a transfer of certain functions which I will outline shortly.
The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies, which had as its overriding aims to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked, first, to address the overarching questions of whether a body needed to exist and whether its functions should be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case both HMICA and PGB, the Ministry of Justice felt that retention was not justified. They were therefore included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.
I will now give some background on each body in turn, beginning with HMICA. It was set up in 2003 and was given two main statutory duties—first, to inspect and report on the system that supports the business of the Crown Court, county and magistrates’ courts and, secondly, to carry out joint inspection, along with other criminal justice inspectorates, of the criminal justice system. However, the situation in which HMICA was working changed greatly after it was created. Her Majesty’s Courts and Tribunals Service, previously HM Courts Service, has since that time developed and put in place more sophisticated and robust ways of carrying out audits, which has mitigated the need for independent inspection of court administration systems.
The outcome of this was a decision by the previous Administration to close HMICA administratively. It was felt, given the more robust audit and monitoring processes then in place, that continuing to fund the body was unjustified and it was closed at the end of December 2010 with the full support of the Lord Chancellor and inspectorate’s senior management. This order, therefore, merely puts on a legislative footing that which has already been administratively achieved. Closing HMICA will save around £6.4 million against the Ministry of Justice baseline for this spending review period.
The Government remain committed to joint inspection of the criminal justice system, and this order includes a transfer of functions to the other criminal justice inspectorates, which will enable them to inspect HMCTS for the purposes of joint criminal justice inspections. This will ensure that no necessary functions previously carried out by HMICA will be left without a statutory basis.
The legislative abolition of HMICA also formed part of a Ministry of Justice consultation that took place in October 2011. Eighteen responses were received, of which seven were opposed to abolition, three expressed some concerns, six stated their support for abolition and two did not express a view either way. Among those who supported abolition, the overriding feeling was that there was no need for an independent inspection of the courts in the current climate, and that HMICA’s function could be adequately carried out elsewhere. Those who opposed abolition were generally concerned that a key government body would be left without independent scrutiny, and that the inspectorate’s specific functions would be left in jeopardy. These concerns have been addressed in the transfer of functions that have been written into the order, and the Ministry of Justice therefore finds no compelling argument within the consultation responses to change its proposal to abolish.
I turn now to the Public Guardian Board, the second body addressed in this omnibus order. The PGB was set up in 2007 to scrutinise and review the way in which the Public Guardian discharges his or her functions and to make such recommendations about the matter to the Lord Chancellor as it thinks appropriate. While this is a worthwhile role, the Government believe that it can now be more effectively and efficiently delivered through new governance arrangements within the Office of the Public Guardian, which I shall hereafter refer to as the OPG, the executive agency which supports the Public Guardian’s work. The Ministry of Justice feels that a separate body for this purpose is no longer needed. As a result, the board was found not to meet the key tests for retention as part of the 2010 government-wide review of public bodies, and was listed for abolition in the Public Bodies Bill.
Following the abolition of the PGB, governance of the Public Guardian and his office will be provided, in line with usual government arrangements for executive agencies, through a management board within the OPG. This will be chaired by the OPG’s chief executive, with executive membership from the OPG and the Ministry of Justice as well as three non-executive directors. The presence of non-executive directors will provide independent scrutiny and challenge of the discharge of the Public Guardian’s functions and those of his office. Collectively, they will have relevant experience such as business and performance management, financial management and dealing with those who lack capacity. I must emphasise that the board itself has also accepted the proposal to abolish, and held its last meeting in June.
As well as fulfilling a key aim of the public bodies review of discontinuing activities that are no longer needed, the abolition of the PGB will provide savings in the region of £400,000 over the current spending review period. Implementation of the new governance arrangements for the OPG will incur some costs that will offset these savings, for which our best estimate is no more than £187,000 over the same spending review period. As with HMICA, the proposal to abolish the PGB was included in a full public consultation which ran from July to October 2011. There were a total of 12 responses, of which 10 did not oppose abolition as long as alternative governance structures for the OPG were put in place. Two were opposed to abolition due to concerns that the PGB’s functions would not be adequately carried out by other means. As we have ensured that the board’s functions will indeed be adequately replaced by the OPG’s management board, the Ministry of Justice finds no compelling reason to change the proposal to abolish.
I turn now to the scrutiny given to this order, which was laid before Parliament on 10 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if that is felt necessary. This order been scrutinised by several Select Committees: in this House, the Secondary Legislation Scrutiny Committee; in another place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period. The Secondary Legislation Scrutiny Committee reported on this order on 24 May, having requested a few points of clarification from officials. The committee was satisfied that the order met the tests set out in the Public Bodies Act, but specifically asked the Minister to address two key points during this debate, and I will now address these.
First, the report stated that public reassurance would be enhanced by the results of Her Majesty’s Courts and Tribunals Service’s scrutiny of court administration being published on an annual basis. I can confirm that Her Majesty’s Inspectorate of Prisons provides a full report of each inspection, and recommendations to improve outcomes are submitted to the relevant Secretary of State. Moreover, all these reports are published and publicly available.
Secondly, the report suggested that the Ministry of Justice should publish the outcome of the new governance arrangements for the Office of the Public Guardian. I can confirm that the Office of the Public Guardian publishes, and will continue to publish, an annual report, and that this will indeed cover governance arrangements as well as key performance indicators and monitoring outcomes. In fact, the latest OPG annual report was laid before Parliament only last week. Key stakeholders were also sent letters outlining the new governance arrangements before they came into effect, as outlined in the consultation response. The Ministry of Justice has taken on board the views of the Secondary Legislation Scrutiny Committee, and thanks it for its thorough reporting.
HMICA and the PGB are two public bodies that were created to carry out particular functions, but their roles have either been superseded by other bodies or can be carried out more efficiently and effectively through other means. HMICA is already closed administratively, and the Ministry of Justice has taken the opportunity within this order to put its residual functions on a statutory footing, ensuring ongoing scrutiny of court administration and the wider criminal justice system. The functions of the PGB have not been formally transferred but we have put robust governance mechanisms in place in the OPG that will ensure continued oversight of the work of the Public Guardian.
The Ministry of Justice remains committed to close scrutiny of the courts and tribunals system, and to continuing the excellent work of the Public Guardian. In the current financial climate, however, it is right that unnecessary activities and bodies across government should be removed; abolishing these two bodies will save the public purse several million pounds. I therefore commend this draft order to the Committee and beg to move.
Lord Beecham
My Lords, as the Minister has said, HMICA was effectively abolished last December. It is now, seven months later, that we have the interment in statutory form. Some sort of inquest might be thought appropriate.
This is another example of what I would call pre-legislative implementation, as I have done in respect of several other measures the Government have brought forward in the past two years. It is unfortunate that the decision has been implemented even before the relevant secondary legislation has been brought forward. Having said that, I do not dissent from the view that change is, if not necessary, then certainly not damaging, subject to the observations of the Secondary Legislation Scrutiny Committee about adequate reporting and annual reports to the public.
By sheer coincidence, I received a copy of the annual report of Her Majesty’s Courts and Tribunals Service just this week—a rather glossy document. There was very little in it about the actual operation of the courts and tribunals. There is a lot of financial information. I do not have the document with me, but my recollection is that there is only about a page or so of detailed reporting—in fairly minimal fashion—of the work of the service. Given the extra responsibilities, and while acknowledging that custodial arrangements will be dealt with separately, there ought to be a fuller report than has evidently been the practice thus far.
Lord McNally
My Lords, again, I thank the noble Lord, Lord Beecham, for his constructive response. I am not sure that it was pre-legislative implementation; perhaps it was pre-legislative anticipation, but I take the point. I also accept his point about annual reporting. I am sure that the relevant bodies will note his comments that annual reports should be just that. There should be full coverage of all areas of responsibility, particularly when the body concerned has taken on new responsibilities.
I also take on board the point about the Public Guardian. There is concern and we must be sure that oversight is proper and full. One aspect that we now hear about in relation to our ageing population is the need to make sure that those whose mental capacities may be diminished have proper protection. It is important that that is assured. We believe that the presence of non-executive directors will provide independent scrutiny and challenge to the discharge of the Public Guardian’s functions and those of his office. Collectively, the directors will have the relevant experience, including in business, performance management, financial management and dealing with those who lack capacity. There will also be non-executive director representation in the Public Guardian’s two existing stakeholder groups, which meet four times a year. There will be continued liaison between the OPG, the MoJ’s sponsor team and relevant policy officials, including those who led on the Mental Capacity Act 2005. I hope that the noble Lord will accept those assurances that his very valid questioning on this is being addressed.
I do not think that any other points were raised. I emphasise again that each report and recommendation arising from all inspections of the courts will be published for public scrutiny.
Lord Beecham
I am very grateful to the Minister, who has answered fully. I am stretching the purpose of today a little wider than I should, but I wonder whether it is the Lord Chancellor’s intention to reply to the letter that he received from the outgoing chairman and whether that reply will be placed in the public domain.
Lord McNally
Knowing the Lord Chancellor’s courtesy in all such matters, I am sure that a full reply will be sent. I will see that it is also copied to the noble Lord, Lord Beecham.
When I saw that the title of the order included “public bodies” and I saw the noble Lord, Lord Beecham, come in, I was petrified. I thought that I would be grilled, so I was even more pleased than usual to see him take his place at the Dispatch Box, rather than as a Back-Bencher. Having made that confession, I commend the Motion.
EU: Interpretation and Translation in Criminal Proceedings
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Baroness Coussins
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice-president of the Chartered Institute of Linguists.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government will take the steps necessary to ensure that the UK is compliant with the EU directive in good time for its implementation date.
Baroness Coussins
My Lords, I understand that the company that the Government have, under the framework agreement, contracted to provide services to courts and the police is supplying performance data to the Government which suggest that it is doing a good job. However, these figures come without any independent verification or audit and tell a very different story from the complaints we hear daily from judges and others about the failure to supply interpreters, or the sending of unqualified people with no experience of simultaneous interpreting and some people who were simply incompetent—in one case not understanding the difference between murder and manslaughter. Does the Minister agree that the UK is at risk of expensive legal action over non-compliance with the directive, particularly Article 5 about the quality of the service, and that we should therefore review the framework agreement now?
Lord McNally
No, my Lords, I do not think we are in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some months to go before the directive comes into play. In the mean time, the Ministry of Justice has a massive interest in making sure that Applied Language Solutions provides the quality and service for which it is contracted. We are making every effort to make sure that that happens.
Baroness Butler-Sloss
Is the Minister aware of the extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Not only does it lead to considerable cost but concerns have been raised by judges across the country, particularly in London, Birmingham and Leeds.
Lord McNally
My Lords, there have been individual complaints about performance and there was undoubtedly a very poor start to this contract. However, there have been improvements and we are talking about a system with some 800 requests a day for such interpretation. In the first quarter of its operation there were 26,000 requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the performance of the contract in its early stages.
Lord Harrison
Has the Minister revised the original estimate of a £12 million saving as a result of implementing the framework agreement because of all these additional costs? Have we not arrived at a situation that is no longer just succumbing to teething problems but is wholly poorly structured in the first place?
Lord McNally
I do not agree with that. As I said, there were problems at the beginning of this contract but the performance has improved dramatically. I presume that the original estimate of a £12 million saving in this first year will probably not be achieved. That is common sense but this is not a solution for just this year. It is a long-term solution that we hope will, once it is bedded down, give the service and quality required.
Baroness Sharples
Can my noble friend say how many languages each interpreter is expected to speak?
Lord McNally
No. However, there are a number of interpreters who speak more than one language. At the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter persons, which means that many of them speak two or more languages.
Baroness Scotland of Asthal
My Lords, will the noble Lord tell the House whether the nature, number and extent of complaints from the courts has gone up or down since the change was implemented? If it has, as we believe, gone up, what do the Government intend to do about it?
Lord McNally
Has it gone up since the scheme was implemented? Yes, it has, because the scheme implements a single supplier that will pay interpreters less than they were being paid on an ad hoc basis. That combination of greater discipline in where and when interpreters are hired and at what fee is not likely to be welcome to the interpreting community. That I understand. But it was the previous Administration who initiated an inquiry into the efficiency and effectiveness of the old interpreter system. We have readily acknowledged that this new system has had teething problems, but there is no ministerial interest or MoJ interest in having questions such as this time and again about performance. The supplier has contracted to a high-quality performance, and we intend to keep it to that.
Lord Anderson of Swansea
How is the performance of that supplier adequately monitored? Is there an independent monitoring system?
Lord McNally
There is not an independent monitoring system—there is a client. We are the client, and we do not intend to pay good money for a shoddy service. As I have just said, as the client we brought this in because we intended to try to make substantial savings for the taxpayer on a system that we believed was slipshod and expensive in its running. When the new system gets bedded down, we hope that it will give high quality. The monitoring is done by the department concerned, the MoJ, and we intend to carry out our responsibilities to make sure that the taxpayer gets value for money.
Baroness Thomas of Winchester
My Lords, I understand my noble friend’s difficulties, about which he has been telling the House, with so many languages having to be covered. Will he tell us how many cases have had to be rescheduled because the right interpreters were not there, and whether that is being monitored by his department?
Lord McNally
There has always been the problem of interpreters not being there, or the wrong interpreters being there. This is not something that has happened in the past 12 months. Indeed, one reason for bringing in a single supplier on a new contract with very precise contractual obligations was to try to remove that. I repeat that providing around 100,000 interpreters in 142 different languages is something of which our justice system should be rather proud. However, once you operate on that scale across that range of expertise, there will be mistakes, hiccups, wrong directions and wrong turn-ups. On the whole, we expect the contract to produce at least 98% performance success, and we intend to keep the contractor to that.
Crime and Courts Bill [HL]
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Lord McNally
“Transfer of immigration or nationality judicial review applications
(1) In section 31A of the Senior Courts Act 1981 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).(2) In consequence of the amendments made by subsection (1), section 53(1) of the Borders, Citizenship and Immigration Act 2009 is repealed.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this amendment will remove restrictions contained in Section 31A of the Senior Courts Act 1981. It will enable applications for or permission to seek judicial review in immigration, asylum and nationality cases to be transferred from the High Court in England and Wales to the Upper Tribunal.
As noble Lords will be aware, this House has considered this issue before. In 2009, the House thought it appropriate to allow the High Court to transfer fresh claim judicial reviews to the Upper Tribunal. These are judicial reviews that relate to a refusal by the Home Secretary to treat further submissions as fresh asylum or human rights claims on the basis that they are not significantly different from the material previously considered. These cases have been heard in the Upper Tribunal since October 2011 and the process is working well. This amendment would potentially enable any class of immigration, asylum or nationality judicial review to be heard in the Upper Tribunal.
The further categories of cases that would be transferred to the Upper Tribunal would have to be set out in a direction, or directions, made by the Lord Chief Justice with the agreement of the Lord Chancellor under the provisions in the Constitutional Reform Act 2005. We envisage that the transfers will take place in a staged fashion to increase slowly the types of judicial review dealt with by the Upper Tribunal. The ability to transfer such cases would play an important role in improving access to justice. Immigration and asylum judicial review cases currently form a high proportion—around 70%—of the caseload in the administrative court. The total number of these cases has doubled in the past five years, with around 8,800 being received in 2011. Many of these cases are relatively straightforward. This volume of cases is unsustainable for the administrative court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court.
I recently met the president of the Queen’s Bench Division and the president of the Upper Tribunal immigration and asylum chamber to discuss the progress that has been made in the Upper Tribunal since it was created in 2010. I am persuaded that it now represents the most appropriate venue for the majority of judicial reviews of this type. As the avenue for appeals against a decision of the First-tier Tribunal, the Upper Tribunal deals with thousands of appeals each year. Since acquiring this jurisdiction it has received nearly 200 fresh claim judicial reviews, which have been dealt with more quickly. Fresh claim cases are on average dealt with in seven weeks, compared to an average of 11 weeks for the administrative court. This has not been at the expense of quality. The judges who sit in the Upper Tribunal have a high level of expertise, particularly in relation to in-country conditions and human rights implications, and are regularly joined by judges of the administrative court.
The Upper Tribunal’s expertise in the field of asylum and country guidance cases has been recognised by the higher courts in the UK and the European Court of Human Rights. It is able to make well informed decisions that will deliver justice in these types of judicial review cases, in the same way as the High Court has done in the past. I beg to move.
Lord Avebury
My Lords, this amendment would allow judicial reviews of immigration and asylum cases and nationality matters to be transferred from the High Court, where judicial review is currently heard, to the Upper Tribunal, as my noble friend has explained. To many of your Lordships, this must feel like Groundhog Day. Parliament made clear its views on whether JRs should be transferred from the High Court into the tribunals once in 2007, during debate on what is now the Tribunals, Courts and Enforcement Act 2007, and again in 2009, during debates on what is now Section 53 of the Borders, Citizenship and Immigration Act 2009. It has said no and has said so powerfully. The arguments against the Upper Tribunal being entrusted with this responsibility still hold good.
The 2007 Act established a new regime, bringing together several tribunal jurisdictions into one structure comprising the First-tier Tribunal and the Upper Tribunal, or UT for short. The Act allowed for the transfer of certain JR applications from the High Court to the UT but, as a result of amendments made during its passage, excluded immigration and nationality JRs from the cases that could be transferred. Parliament returned to this matter, as my noble friend has reminded us, in 2009 during debates on the then Borders, Citizenship and Immigration Bill and again rejected a proposal that would permit the wholesale transfer of immigration and nationality JRs.
The compromise reached was that a JR concerned with a decision on a fresh claim for asylum—that is, one made after an earlier claim and any appeals against its refusal had finally been rejected—was made transferable. Since 2009, the once separate Asylum and Immigration Tribunal has been transferred into the two-tier structure, with an immigration and asylum chamber in the First-tier Tribunal and in the UT. Meanwhile, on a case-by-case basis, the High Court has transferred a few JRs against local authorities concerning the age of separated children seeking asylum to the UT where they have ended up in the immigration and asylum chamber. However, age-dispute JRs can be transferred because they are not decisions about immigration or nationality and are therefore not affected by the 2007 Act. These cases start in the administrative court, but can be transferred to the UT on a case-by-case basis. There have been only four reported cases to date.
Fresh-claim JRs are transferred as a class. There are no reported cases yet and only one case that the tribunal was to hear. The UT has no experience of hearing JR cases so there is no way of assessing whether it is likely to cope well or badly with them. Meanwhile, although there is power to transfer fresh-claim judicial reviews from the Outer House of the Court of Session in Scotland to the UT, that power has never been exercised. I can do no better than cite the comments of the late Lord Kingsland on Report on the Tribunals, Courts and Enforcement Bill. He said,
“first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases … Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge”.—[Official Report, 1/4/09; cols. 1126-27.]
There is no such evidence yet. Powers to transfer JRs into the UT are being sought when it has done only a handful of age assessment cases and has not built up any track record whatever in dealing with fresh-claim JRs. High Court judges have sat in the UT, but there are also judges in that chamber who were adjudicators and special adjudicators of the former Immigration Appellate Authority and its successors. They have never heard cases outside the immigration and asylum tribunal jurisdiction, but the amendment would allow them to deal with JRs on which they have zero experience.
Speaking for the then Government in 2007, the noble Baroness, Lady Ashton of Upholland, accepted that JRs in immigration cases were particularly sensitive. The point was underlined by a forceful observation from the noble and learned Baroness, Lady Butler-Sloss, in Grand Committee in 2006. She said:
“I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly”.—[Official Report, 13/12/06; col. GC 68.]
Then there was the noble and learned Lord, Lord Lloyd of Berwick, who said at Second Reading of the Borders, Citizenship and Immigration Bill:
“If the effect ... is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it”.—[Official Report, 11/2/09; col. 1142.]
The then Minister, the noble Lord, Lord West, winding up that debate, said that,
“the senior judiciary are very supportive of the clause”—[Official Report, 11/2/09; col. 1211.]
that is, the clause providing for the transfer—which he said was shown by the responses of the President of the Queen’s Bench Division, the Master of the Rolls and the Senior President of Tribunals to the consultation on immigration appeals. However, the Master of the Rolls had merely indicated that he supported the views of the President of the Queen’s Bench, who in turn stated that proposals for transfer of JRs in general were welcome, but emphasised that:
“Some of them are plainly suited to the Administrative Court and should remain there”.
The Senior President of the Tribunals agreed with him. The Court of Session judges did not welcome the proposal. They said that,
“any decision as to a more general transfer of judicial review jurisdiction in this area—
immigration—
“should be made only once the Upper Tribunal has gained extensive experience of implementing its proposed remit”.
No such extensive experience has been gained. Others, including the Immigration Law Practitioners Association, the Constitutional and Administrative Law Bar Association, the Glasgow Immigration Practitioners’ Group, the Law Society, the Refugee Legal Centre, the Refugee Council and individual lawyers, have expressed views similar to those of the judges of the Court of Session.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that indication of the Opposition’s support for this amendment. I gladly give him, and the noble Lord, Lord Avebury, an assurance that what we are doing will be kept under review in close consultation with the judiciary.
It is true that this matter was discussed in 2009, as the noble Lord, Lord Avebury, said, but we have now had three years’ experience of the workings of the Upper Tribunal in these areas and we have also had representations from the senior judiciary about how the present system is clogging up the High Court and bringing some of the pressures to which the noble and learned Lord, Lord Woolf, referred.
I have not taken lightly the decision to bring this back to the House. In a meeting, the president of the Queen’s Bench Division and the president of the Upper Tribunal convinced me of two things: first, that we would be taking some pressure off the High Court and High Court judges by doing this; and, secondly, that by moving these cases to the Upper Tribunal we would in no way diminish the quality of justice available. On the contrary, as the noble and learned Lord, Lord Woolf, indicated, a great deal of the expertise for judging these cases is in the Upper Tribunal.
I take the point that the noble Lord, Lord Avebury, made about the UK Border Agency’s withdrawals. There are varied reasons for cases being withdrawn but, coupled with other government reforms, we are getting a better system for dealing with these cases from the UKBA. The senior judiciary is broadly in favour of the amendment as a sensible solution to the backlogs in the High Court and an opportunity to transfer cases to the most appropriate part of the justice system. There has been strong judicial involvement in the discussions preparing for this amendment, and the judiciary is keen to ensure that it is successfully introduced. As the noble Lord, Lord Beecham, said, the Lord Chief Justice will be closely involved with the Lord Chancellor in gauging the pace of movement on this so that we get the twin benefits of faster, efficient, high-quality justice in immigration cases and some elbow room in the High Court to deal with the important cases that the noble and learned Lord, Lord Woolf, mentioned.
I hope the noble Lord, Lord Avebury, will be content to take those assurances and to accept that this decision has been taken on the basis of the experience of the past three years, which we believe is entirely favourable to the move that we are making. That is coupled with the assurance that we will keep the matter under review and will be in close contact and consultation with the senior judiciary to ensure that the move is completely in keeping with the access to good justice that is the aim of this amendment.
Lord Avebury
My Lords, can my noble friend answer the question I put to him about how many cases were withdrawn by the UKBA—to correspond with the figures I gave for 2006 and 2007? If a very large number are being withdrawn, and thus the UKBA is conceding that the original decision was wrong, surely that proves that there are other methods of reducing the pressure on the High Court rather than transferring all these cases to the tribunal.
The Earl of Sandwich
My Lords, I am not sure that the Minister answered the point made by the noble Lord, Lord Avebury, about the relative inexperience of the Upper Tribunal in immigration. He quotes the wise and the good, and we have heard from the noble and learned Lord, Lord Woolf, but surely we are not making a decision on the basis of advice only but on the actuality of the court over the period.
Lord McNally
The point was made that the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters. The Upper Tribunal’s expertise in reducing backlogs in the Administrative Court has been demonstrated. I do not have the most up-to-date figures on UKBA withdrawals, but in my closing remarks I accepted that one issue was the UKBA’s tendency in the past to withdraw objections. Reforms that are being taken forward by my right honourable friend the Home Secretary aim to deal with some of those criticisms of the UKBA.
However, that does not take away the central thrust of this proposal that since 2009 the Upper Tribunal has shown itself to be working well, and we are not rushing our fences in this case. Both the Lord Chancellor and the Lord Chief Justice will be closely involved in gauging the movement of cases to the Upper Tribunal, but no one has seriously doubted its competence or expertise to deal with these matters. On the contrary, it has shown itself to be remarkably efficient at cutting time for dealing with cases, which must be in the interests of justice.
Lord McNally
Lord McNally
Lord McNally
My Lords, these amendments all relate to the provisions on the deployment of the judiciary. Of particular note is Amendment 140, which introduces an emergency procedure regarding the appointment of deputy judges of the High Court when there is an urgent need to do so. The Bill introduces a Judicial Appointments Commission process for appointing deputy High Court judges and authorising circuit judges and recorders to sit in the High Court. This is an important reform to increase transparency regarding these appointments.
Amendment 140 would deal with situations where there is an urgent and unforeseen demand for a deputy High Court judge and it is not practicable to draw on any judges of the High Court or any of those who have been selected previously by the Judicial Appointments Commission, or to deploy any other judge who is authorised to sit in the High Court or Crown Court in the time available.
The amendment inserts new Section 94AA into the Constitutional Reform Act 2005. The purpose of this new section is to specify clearly circumstances in which the normal Judicial Appointments Commission selection exercise may not be applied in the appointment of a deputy judge of the High Court for a definite period. This may be needed in exceptional circumstances, such as a number of judges being unwell or suffering some other unexpected misfortune, meaning that a particular area of expertise is required at short notice. The amendment specifies what criteria must be applied if the Judicial Appointments Commission is not to select deputy judges of the High Court. It also clearly limits the duration of the appointment to the disposal of the particular business that gave rise to the use of the power.
Amendment 145 inserts a new Part 3A into Schedule 13 of the Bill. The new part deals with the deployment of judges to the Court of Protection. Our new deployment policy has been applied in this jurisdiction and all judicial officeholders are now able to be nominated to sit in the Court of Protection, including deputies and temporary appointees. Of course, in this and all jurisdictions, judges may be deployed only if the Lord Chief Justice determines that the judge possesses the necessary expertise and experience and deems in all other circumstances that it is appropriate for that particular judge to be deployed to that specific jurisdiction. In this jurisdiction, there has been a particular difficulty in ensuring that the court is fully resourced with judges that have the necessary skills and ability to hear these complex and often difficult matters. The amendment enables the Lord Chief Justice to provide appropriate judicial resources from a broader pool of candidates; it also widens the group of judges who can be appointed to act as the senior judge of the Court of Protection, handling certain administrative functions to that court.
The other amendments in this group on judicial deployment are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to Schedule 13 of the Bill. I will not detain the Committee further with this group of amendments, but I can provide further details of these amendments if needed. I beg to move.
Baroness Butler-Sloss
Perhaps I could ask the Minister what may be a rather stupid question. Unfortunately, I do not have the Mental Capacity Act in front of me, but I assume that the President of the Family Division and the judges of the Family Division and the Chancery Division are still on the list of those who will be trying these cases, as they are usually the judges who do it.
Lord McNally
I tread on very thin ice, but I think that I can assure the noble and learned Baroness that that is the case. If not, I shall make sure as soon as possible that the Committee knows that I am wrong.
Baroness Hamwee
I want to ask my noble friend a question about Amendment 140. He described the circumstances and need for flexibility in the ability to appoint temporary High Court deputy judges. I would like to ask about the business for which they would be needed, in proposed new Section 94AA(2)(a), which refers to both an “urgent need” and the “disposal of particular business”. He mentioned the need for special expertise, but has he any further examples of what the “particular business” might be? I take it that we are not being asked to agree to temporary appointments to deal with urgent business per se. It is the term “particular business” that interests me. I could have pictured this clause better if it did not refer to “particular business” but to “business” in general. I am sorry that I did not give the Minister notice of the question. He may wish to come back to it at a later point.
Lord McNally
I, too, am rather sad that my noble friend did not give me notice of the question. I am pleased that we are bringing in a role for the Judicial Appointments Commission in the appointment of deputy High Court judges. To put it bluntly, there was a suspicion in some areas that the appointment of deputy High Court judges was the last surviving remnant of the “tap on the shoulder” system of appointments. Therefore the proposals to bring the appointments commission into the process are important.
However—I say this in the presence of the noble and learned Lord, Lord Woolf, with all his vast experience—we were determined not to put the Lord Chief Justice of the day into a straitjacket. He has to be responsible on a day-to-day basis for deploying the judiciary and, if there is a need to appoint a deputy in an emergency, we should have the ability to do so. Hence, in introducing the provision, there are many references to exceptional circumstances and a definite period so that this emergency procedure would not lead, again, to a way of appointing deputy High Court judges by a tap on the shoulder. It leaves the Lord Chief Justice of the day with the wriggle room to deploy efficiently but makes sure that the main appointment of deputies now comes within the ambit of the Judicial Appointments Commission.
As for specific examples, the best I can do is to write to my noble friend giving her some examples, which I hope will reassure her. I shall, of course, put a copy of the letter in the Library of the House for the benefit of the Committee.
Baroness Turner of Camden
Fairly recently I asked questions in the House about employment tribunals and I was told by the Government that an investigation into them was currently proceeding and that we would be told the results in due course. Does the change of title listed in Amendment 146 from “chairmen of employment tribunals” to “Employment Judges” form part of that general investigation?
Lord McNally
Yes, my Lords, it is part of the general process of reform at both the tribunal level and in other parts of the judiciary. So there will be employment judges from now on.
Lord Thomas of Gresford
Perhaps I may help my noble friend by illustrating the kind of particular business there could be. In the old days it was not so much a tap on the shoulder as a ring-round by the Lord Chancellor’s Department to find someone who could go and do particular cases on very short notice. I recall being asked to go to Leeds with the inducement that I could stay in the judges’ lodgings—not much of an inducement, I may say—to try three large medical negligence cases. They said, “Don’t worry, they’ll all settle”. In fact, they all stood up. That is the sort of instance when counsel on both sides are all ready to go ahead on a fixed date but there is no High Court judge to take it. Everybody assumes that the cases will settle but they do not.
Lord McNally
Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.
Lord Beecham
I am glad that the noble Lord is not emulating Rasputin in terms of his trips across the ice.
The Opposition do not take issue with the amendments but it is interesting that in a move to simplify the system we have a complex series of amendments. They add several pages to Schedule 13. By sheer chance today, a Mr Patrick O’Brien, a research associate of the Constitution Unit, has written a blog—I suppose that is what it is—about the issue of judicial appointments under the Bill. He makes the point:
“The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads—the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types—and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels though the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it”.
Can the noble Lord give an indication of when, if at all, regulations will be introduced and what they might cover? Mr O’Brien goes on to say: “The CRA”—Constitutional Reform Act—
“is not just addressed to civil servants”—
or Members of your Lordships’ House or indeed the other place. He continues:
“It has constitutional significance and”,
should be,
“comprehensible to the general public”.
The noble Earl, Lord Attlee, referred to improvements in satnav technology when he was answering a Question on transport earlier. The implication of Mr O’Brien’s article is that we need the equivalent of satnav to navigate through this complex field of appointments. Having said that, we do not object in principle but it would be helpful if a guide were available to the public as well as to the practitioners so that they can see how the new system is supposed to work. Again, as with the previous amendment, I assume that the Government will be monitoring developments and will ensure that problems are dealt with in due course.
Lord McNally
My Lords, I am extremely grateful to the noble Lord, Lord Beecham, for his indication of support and for some sensible suggestions that I hope will assist the Committee. We will be publishing draft regulations before Report. The idea of a simplified guide on how these will impact is very sensible and I will take that back to my right honourable friend the Lord Chancellor. Amending existing legislation can be extremely complex when fitting in new proposals to existing legislation.
The noble and learned Lord, Lord Falconer—I was going to say my noble friend—along with the noble and learned Lord, Lord Woolf, showed a certain pride of authorship in the new disposition of our legal system after the reforms of the earlier part of this century. What we are trying to do, in our different ways, is build on reforms that have given us an effective system. These include promoting greater diversity in our judiciary. As we were discussing the other day, we are also conscious of the important nexus of the system, with the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor.
Lord McNally