Public Advocate Bill [HL]

Lord McNally Excerpts

Friday 29th January 2016 Lords Chamber

[Lord McNally (LD)]

My Lords, as I rise to speak I suspect that going through the mind of the noble Lord, Lord Faulks, is a conversation we had when he took over from me as Minister of State at the Ministry of Justice, when I said, “Don’t worry—I’m not going to be one of these ex-Ministers who haunts you when you’re doing the job”. I am in fact speaking twice today but that is still my resolution. It is a great pleasure to follow the noble Lord, Lord Wills, and to speak before the noble Lord, Lord Blunkett, on this matter. Both bring incredible experience as well as local and national expertise to the Bill before us. As we all know, the noble Lord, Lord Wills, is an ideas man and has a terrier-like determination once he has something in his sights.

I am very pleased to be able to support a Second Reading for the Bill. The debate is bound to be dominated to a great extent by the Hillsborough disaster. My parents were both born in Liverpool and I have a large number of cousins and second cousins and the rest dotted around Merseyside, so I know the trauma and hurt that Hillsborough caused. However, it is also important, as the noble Lord, Lord Wills, indicated, that this should not just be the final piece in the Hillsborough puzzle but should look forward to the disasters that will inevitably happen in the future.

Hillsborough, as the noble Lord, Lord Wills, indicated, was all too familiar, as regards how major disasters happen. Families and the bereaved feel excluded from the process; those with responsibilities become defensive and uncommunicative; and ranks are closed to protect reputations, avoid culpability, and protect commercial or operational confidentiality. The wheels grind slow and the lay person feels excluded, as professionals seem to take over what is for individuals not simply today’s headline but a deeply personal tragedy.

Hillsborough only now comes to closure over a quarter of a century after it happened. Lessons have to be learned by the football authorities. I remember where I was when I heard on the radio that there had been a disaster, and my first reaction was, “Not again”. Ibrox, Bradford—any of us who were regular football attenders knew that health and safety at football grounds was a joke. Now I think again, there have been massive improvements over the last 20 years in ground safety and the quality of the offer to the football fan. However, the lessons of Hillsborough still need to be learned. They need to be learned by the police, certainly as regards crowd control, which was unbelievably amateurish at Hillsborough, as we now know, and as regards their own internal behaviour, discipline and inquiries. They are hard lessons to learn, but learn they must.

The noble Lord, Lord Wills, paid tribute to the changes in the coronial system and the guidelines on speed and information now under way. It is worth while noting that the inquest into the 7/7 bombings, conducted by Lady Justice Hallett, received almost universal commendation for the skill with which she conducted it. The noble Lord, Lord Wills, is right to say that neither the Bill nor its supporters have any intention of getting away from the inquest system properly conducted. Government and politicians also sometimes failed to listen or act. Sometimes that is because of the reaction when these things happen, when our compensation culture kicks in and there is a defensiveness against that. However, that does not go against the key hurt which the Bill intends to address.

I agree with the noble Lord, Lord Wills, that there is no room for complacency. There is much more room for transparency; if any lesson runs through this like through a stick of Blackpool rock, it is about the need for transparency and openness in dealing with these issues. Therefore I join the noble Lord in urging the Government in dealing with the Freedom of Information Act to treat it as the precious asset it is. I end as the noble Lord did; the headline in yesterday’s Independent said:

“Hillsborough trauma ‘could be avoided’ under new plans to help families of disaster victims”.

That sums it up. On that ground alone, the Bill is justified in being given a Second Reading.

Age of Criminal Responsibility Bill [HL]

Lord McNally Excerpts

Friday 29th January 2016 Lords Chamber

[Lord McNally (LD)]

My Lords, it is always an enormous pleasure to listen to and follow the noble Earl, Lord Listowel, on any subject linked to the welfare of the child, not simply because he keeps a close interest in these matters but because, when he speaks to the House, he speaks from direct experience of talking to children and those who work with children, who give us a message of the reality at the sharp end of this. We are always in his debt for these contributions. Likewise, as I have put on record before, I am grateful to my mentor, my noble friend Lord Dholakia—I was going to say “old mentor”, but he gets sensitive about the term “old”—who, over 20 years or so, has been a constant prod to me on reforming the criminal justice system.

As is on the register, I am the chairman of the Youth Justice Board, but I am not speaking today in that capacity.

Another thanks must go to the noble Earl, Lord Listowel, because what he said feeds into what I want to say, on his proposal to move the age of criminal responsibility into a wider context. If we are going to have a rational debate about that, we have got to put it in a wider context.

It is interesting that when we had the debate earlier today about drink-driving, the Minister was urged to look at Scotland as an example. Next month, the Scottish Government will receive the report of an advisory panel on raising the age of criminal responsibility in Scotland. That is something that Ministers, and all in this House who are interested in the matter, will be very keen to read. The Scots have gone for a slightly hybrid model so far; they have kept the age of criminal responsibility at eight, but no child can be brought before a court until the age of 12. The advisory panel has been looking at that and the suspicion is that it will advise a common age for both, but we will have to wait and see.

As my noble friend Lord Dholakia indicated, the long shadow of James Bulger’s murder on 12 February 1993 lies across any debate about the age of criminal responsibility. When I was appointed chair of the Youth Justice Board 18 months ago, I was interviewed by the magazine Children & Young People Now about how I saw the job, and I was asked what I thought about the age of criminal responsibility. I said that I was aware that the Scots were looking into the matter and thinking of raising it to 12 and that we could do likewise. The next day, a national newspaper rang James Bulger’s mother to ask her what she thought about changing the law so that James’s killers would have “got away with it”. It was a monstrous crime, but I think it intimidates proper debate about the age of criminal responsibility. The two boys who killed James would not have got away with it. However, the full trial, which began in Preston Crown Court on 1 November 1993, would not have been conducted as an adult trial, as it was, with the accused in the dock away from their parents and the judge and court officials in legal regalia.

I am well aware that since that time changes have been made to make trials involving young persons more child friendly. However, I spoke to a senior judge who visited Preston Crown Court recently and he told me that it had not changed in appearance since 1993. It remains virtually unchanged and, as he said, it is almost unbelievable that two 10 year-olds should face trial in such a place and in such a way. I know that it is Mrs Bulger who has received the life sentence, and I do not sympathise with the perpetrators at her expense, but much has happened in the past 20 years which has increased our understanding of crimes committed by children and our responses to it, as the noble Earl, Lord Listowel, so eloquently explained.

The Youth Justice Board was set up in 2000 following the Crime and Disorder Act 1998, which in itself followed the ground-breaking report of 1996, Misspent Youth, to address the specific challenges of offending by under-18s—children in the eyes of our law. The clear statutory aim of the YJB was to prevent offending by young people. For that reason, the continuing fall in the number of children entering into the justice system—statistics yesterday show another 9% fall last year—and the secure estate, which, as the noble Earl, Lord Listowel, said, is now down to about 1,000, only 50 of them girls, all points to the right direction of travel under successive Governments.

These outcomes are not the result of the work of the Youth Justice Board alone but the work of many hands. It is still work in progress, and the noble Earl, Lord Listowel, referred to the very high reoffending rate of those who have been in the secure estate. Progress certainly owes much to the work of the holistic, locally-based, cross-disciplinary approach of the youth offending teams, which the Youth Justice Board established. It also owes much to the police “buy in” at national and local level of programmes and protocols aimed at diverting young people from crime and the criminal justice system. The liaison and diversion services championed by the noble Lord, Lord Bradley, in his ground-breaking report mean that mental health needs are detected and dealt with sooner.

The Magistrates’ Association has shown vigour in looking at how best youth courts can adapt, and Mr Gove has recently expressed his interest in problem-solving courts. The Government’s Troubled Families initiative moves action upstream to tackle the multifaceted dysfunctionalities which are often the precursor of criminal behaviour, again as the noble Earl, Lord Listowel, explained.

Work by the Disabilities Trust Foundation at the Keppel unit at YOI Wetherby has shown the benefit of identifying and treating brain injury among young offenders. Research by University College London, among others, has shown that the brain evolves and matures over a long period after the age of 10. That is why, as we have heard, most European countries have ages of criminal responsibility higher than ours. Most continental jurisdictions espouse a welfare approach to offences by the young. Over the past 20 years, a lot of the undercurrent of the approach to youth justice in England and Wales has been, as I have illustrated, to use welfare rather than criminal sanctions in dealing with young offenders. I was pleased that during my time in government the Transforming Youth Custody initiative was taken forward to double to 30 the number of hours of education. It is significant that Mr Gove has asked an educationalist, Mr Charlie Taylor, to conduct an inquiry for him into youth justice services. I put on record my appreciation for the thorough and comprehensive way in which Mr Taylor has carried out his inquiry. I have already discovered that youth justice is a field well populated with strong opinions, but I do not think anyone will be able to say that they have not been able to bend his ear by the time his report is published.

On the eve of this debate, I came across a report by Dr Di Hart, working through a Churchill Fellowship award and supported by the Prison Reform Trust, entitled Correction or Care? The Use of Custody for Children in Trouble. I intend to invite Dr Hart to the House to present her report more fully. I shall briefly run through her recommendations, because they tie into the wider debate on welfare or punishment in our criminal justice system, which I think Mr Gove is ideally positioned to undertake because of the confidence that he has won in all areas. The recommendations in the report include:

“Reconsider the separation of justice, welfare (and psychiatric?) placement models … Develop a shared understanding of the best model for meeting children’s needs … Regional commissioning … Pilot a new model of residential care”—

something that I think has a certain urgency to it—

“Develop a shared data set to measure experiences and outcomes … Establish an expert panel to advise on good practice … Maintain the involvement of sentencers in tracking children’s progress”,

which is something that I know the Magistrates’ Association is interested in taking forward.

This debate is taking place in that wider context. I think that we are moving towards a system of looking after young people and children, in particular the very young, from the age of 10 upwards, in a more welfare-based way, precisely because of the point made by the noble Earl, Lord Listowel. The present system does not work; reoffending is far too high, and it is expensive. Even the most hardened “lock ’em up and throw away the key” people have to concede that we are wasting public money. A new, broader look at the context of this may achieve a national consensus, but we need to do it in a rational manner in the light of research, of experiences in other countries, of advances in medical and other scientific understanding, and of other changes recommended when the Taylor report is produced. This Bill is before us at an opportune moment, and I commend it to the House.

Prison Reform

Lord McNally Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord McNally (LD)]

My Lords, I start this speech in some confusion. I came along quite ready to explain to the House how much I agreed with the noble Lord, Lord Fowler. It is something of an emotional shock for me to say how much I agree with the noble Lord, Lord Forsyth, as well. An observer of the debate might say, “Well, where is the problem?”. I think that we all know where the problem is—and it is not in this House, which frequently has very liberal debates on issues such as this. The problem is down the Corridor, it is in the media and it is on the doorstep when we go canvassing. That is worth putting in perspective. We still have other audiences to convince.

I thank the noble Lord, Lord Fowler, for this timely debate, to which he has attracted some very well-informed contributors. I declare that I am the current chairman of the Youth Justice Board. It is always a delight for me to follow my noble friend Lord Dholakia, who has been my mentor on these issues over many years. I think that we are all grateful chiefly to the Prison Reform Trust for an excellent brief, which gave us the basic figures: 85,000 people in prison, nearly 4,000 of them women; fewer than 1,000 under-18s, fewer than 50 of them girls; 45% of adults reoffend within a year of release; and 67% of under-18s reoffend.

As the noble Lord, Lord Fowler, reminded us, quoting the Chief Inspector of Prisons, Nick Hardwick, there are genuine concerns about safety in both the adult and young people’s secure estate, and genuine questions are being asked about the capacity of our penal system to rehabilitate or reform, as the reoffending rates seem to indicate. But I also believe that, as others have said, there are grounds for optimism. Since Mr Gove became Justice Secretary, he has been asking the right questions and has gone about finding the right answers.

He has asked Mr Charlie Taylor to produce a wide-ranging report on the youth justice system, and the Youth Justice Board is co-operating fully in that exercise. The longer I am in this job, the more I am convinced that a successful youth justice system is how to cut crime off at its headstream. He has appointed Dame Sally Coates to look at education in our prisons. I am sure, as the noble Lord, Lord Forsyth, just indicated, that his experience at the Department for Education is of value in giving education and training the proper priority they should have within our prison system. Of course, his plan to close the Victorian inner-city prisons gets rid of some real eyesores, and makes the argument to the Treasury, as the MoJ becomes a property developer, that it can use some of that money to build proper modern prisons for the 21st century.

The case for reform also benefits from parallel work being done, often under the leadership of Members of this House. As we have heard, mental health has been championed by the noble Lord, Lord Bradley, in his two ground-breaking reports. We have had the recent report of the noble Lord, Lord Harris, on deaths in custody. The benchmark for the issue of women in prison is still the report of the noble Baroness, Lady Corston. There is the committee of the noble Lord, Lord Laming, on which I have the honour to serve, looking at the overrepresentation of looked-after children in our criminal justice system. The overrepresentation of black and ethnic minorities has been the subject of a report by the noble Baroness, Lady Young of Hornsey, and ongoing work by her. My noble friend Lord Carlile produced a very useful report on the effectiveness of the youth justice system and the magistracy. My colleague and noble friend Lady Tyler also works as chair of the Children and Family Court Advisory and Support Service. All will supply valuable assistance to a reforming Secretary of State, as will the views of our next speaker, the noble Lord, Lord Ramsbotham.

Time is too short to cover all the good work being done. Let me mention just two points, partly linked to what the noble Lord, Lord Bradley, was saying. There is good work being done by my old college, UCL, on brain development, while the Disabilities Trust Foundation is working at the Keppel unit at Wetherby on the impact of brain injury on young offenders. I intend to ask them to come to the Lords later this year to present their findings. Let me also refer to the point made by the noble and learned Lord, Lord Brown, on IPPs. I was the Minister who brought that Bill through this House and I can say, without equivocation, that the intention of Parliament at that time was to bring to an end the scandal of IPPs. Section 128 was put into the Act specifically for that purpose. I hope that the Minister has some progress to tell the House about.

There is another real reason for optimism, which is what Michael Gove has been saying. One of his first speeches as Justice Secretary was entitled, “The treasure in the heart of man”. That is a direct quote from the speech made by Winston Churchill as Home Secretary in 2010—no, in 1910. Would that he were here to make it now. He said then:

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country”.—[Official Report, Commons, 20/7/1910; col. 1354.]

And so it is. If it is in that spirit and mood that Mr Gove takes forward his reforms, he can certainly rely on support from all parts of this House.

Prisons: Young People

Lord McNally Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord McNally (LD)]

My Lords, it is always a great pleasure to follow the noble and right reverend Lord, Lord Eames, as he gives us a glimpse of optimism and of redemption. All of us who work in the criminal justice system can think of personal examples of individuals whose lives have been changed by the intervention of others, which is one reason why I am a great supporter of mentoring.

Like others, I thank the noble Lord, Lord Harris, for both securing the debate and producing a report that could, if listened to, be a genuine landmark in advancing the case for prison reform and effective rehabilitation. Although the report is an independent review into self-inflicted deaths among 18 to 24 year-olds in custody, the noble Lord has, as the noble and right reverend Lord, Lord Eames, pointed out, taken on the broader challenge set out in the report’s title: “changing prisons, saving lives”.

The Motion before us sets out the core messages of the report: to address the problems before young people enter prison via an effective programme of treatment and diversion; to reduce the prison population; to improve conditions in prisons; to work upstream on diversion, and on rehabilitation in custody and post-custody so that prisoners have an option of a meaningful and law-abiding life.

I declare my interest as chair of the Youth Justice Board for England and Wales. I thank my noble friends Lord Dholakia and Lord Carlile for their kind comments. As I listened to this I thought about what a source of advice this House is to the Minister. There is my noble friend Lord Carlile’s report on youth courts and the report by the noble Lord, Lord Bradley, on mental illness. There is the report by the noble Baroness, Lady Young, on BAME. I am very pleased to be working closely with her on that. There is the report before us today from the noble Lord, Lord Harris, and, as the noble Baroness, Lady Young, pointed out, coming down the track is the report on looked-after children from the noble Lord, Lord Laming, and the committee on which I have the pleasure to serve.

As noble Lords will know, the YJB has responsibility for young offenders aged over 10—our age of criminal responsibility—until they reach the age of 18: adulthood in the eyes of the law. The Harris report’s remit did not cover the under-18 secure estate, but the noble Lord did examine the four deaths in the youth estate between 2000 and the last self-inflicted death in 2012. In addition, the YJB willingly gave both oral and written evidence to his committee. We made available to it our study of all 16 such deaths that have occurred in the last 15 years in the youth estate, which was published in March 2014 and entitled, as the right reverend Prelate the Bishop of Portsmouth said, Deaths of Children in Custody: Action Taken, Lessons Learnt.

The responsibility to keep young people in our care safe is paramount in the Youth Justice Board’s duties. But I am also aware—this is why I was eager to take part in this debate—that there is not some magic transformation at the age of 18. I recently attended a presentation based on work being done at University College London on brain development, which showed a wide variation in timings of maturity, between the early teens and the age of 25, as the noble Lord, Lord Bradley, said. That is why I so welcome the Harris report. The YJB recognises that young adults, much like children in our youth estate, have specific needs, entitlements and potential. These must be addressed and supported on an individual basis to mitigate their risk of self-harm and suicide, and to support their time in custody and rehabilitation.

The Harris review endorses the benefits of a multiagency and holistic approach to address the needs of those in the criminal justice system for which the YJB has been the pathfinder these last 15 years. I am proud that we now have barely 1,000 young people in custody in the secure estate, fewer than 50 of whom are girls. That compares with nearly 4,000 10 years ago. As the Harris report advocates, that has been achieved by going upstream to tackle the causes of offending. As a result, the number of people in custody and first-time entrants is now at an all-time low.

I pay tribute to the way in which police forces and police and crime commissioners have bought into early intervention and diversion. Our other partners—children’s and social services departments, probation services and health and education—have all embraced this holistic approach to diversion. I assure the noble Lord, Lord Harris, that his approach will greatly influence the approach and policies of the YJB in the months and years ahead. I agree with him that the troubled families programme often overlaps with ours with regard to the challenges posed by young offenders. However, this is a report for all ages—under 18s, under 25s, over 25s. Its recommendations make sense far beyond its narrow remit.

There is much in the report to approve of but I shall touch briefly on just one or two matters. First, I will not try to go further than the comments of the noble Lord, Lord Bradley, on mental health services and, particularly, liaison and diversion services. However, I say to the noble Lord, Lord Judd, the noble Baroness, Lady Healy, and others, that I think there is a little glimpse of optimism. The Minister, Alistair Burt, is building on the record of my colleague Norman Lamb in putting mental health care high on the agenda. The Youth Justice Board is working closely with NHS England to bring forward a programme of early intervention.

Secondly, on education, the Prime Minister and the Secretary of State have made major commitments to make life in prison meaningful through better education and training. The big problem here is the gap between those high ideals and the harsh reality of delivering a safe environment in which to carry out those education and training programmes.

I also draw attention to a matter that has been raised by a number of other speakers—namely, if there is one thing which really gives me concern since I became chairman of the YJB, it is the disjoint in information as a young person passes through the criminal justice system. We have a fear—particularly, I suspect, on my Benches—of the big brother state that knows all too much about us. The reality is that people too often have to make fundamental decisions about the welfare, vulnerability and needs of a young person with incomplete knowledge about what has happened previously and who has dealt with that young person previously. A major priority should be to ensure that the journey of the child into young adulthood is accompanied by as full a record as possible of their vulnerabilities and needs, what has happened to them and what should be done for them.

On staff skills, I associate myself with what has been said by one or two speakers, most recently the noble and right reverend Lord, Lord Eames. I sometimes leave the secure estate in absolute awe of what the staff do. It is not an easy environment and the young people they are dealing with are not all lovable, yet staff do tremendous work. It is important that we take responsibility for saying that nobody should have to go out to work thinking, “Is this the day I am going to be seriously injured doing my job of trying to keep order in a YOI or prison?”. We have to address that issue.

This is a landmark report and an opportunity for reform. These times of austerity are not the easiest times. However, it behoves us all to reflect that, during the timescale covered by this report, all three parties have been in government at one time or another. Like the noble Lords, Lord Fellowes and Lord Harris, who also quoted Churchill—when he was a Liberal—I believe that,

“the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country”.

That is doubly true when it comes to the treatment of the young. As I said in opening, we are indebted to the noble Lord, Lord Harris, and his colleagues for their work. It is now incumbent on all of us with responsibility in these areas to heed their wise advice.

Prisons: Secure Colleges

Lord McNally Excerpts

Thursday 18th June 2015 Lords Chamber

[Lord Faulks]

Of course I understand the noble Earl’s concern. He has been a consistent supporter of those at this level of challenge to the community. Of course, there are challenges with the limited number of people who are now in custody because, by definition, there will not be a suitable secure children’s home or secure children’s training centre in every part of the United Kingdom. However, it is a principle that will be very much borne in mind.

[Lord McNally (LD)]

My Lords, the House is aware of my interest as chairman of the YJB. Is the Minister aware of how grateful YJB staff are for the widespread support in this House for the work that they do? Is he also aware that, as indicated by the Question asked by the noble Lord, Lord Ramsbotham, there is increasing and welcome co-operation among Whitehall departments —health, education and justice—to make sure that young people who receive education while in custody continue to get education, training or job opportunities once they go through the gate?

[Lord Faulks]

I am very happy to acknowledge the joined-up thinking to which the noble Lord refers. I pay tribute to him as the chair of the Youth Justice Board for all the valuable work that the Youth Justice Board and he do in helping with these great difficulties that confront the Government. I think that the YJB is joining in with a stocktake generally of the youth offending teams. I know that education is a major concern across government, and it is something that the Secretary of State will have very much in mind.

Queen’s Speech

Lord McNally Excerpts

Monday 1st June 2015 Lords Chamber

[Lord McNally (LD)]

My Lords, in intervening in this debate, I must set the context in which I do so. Since March 2014, I have been chairman of the Youth Justice Board for England and Wales. The YJB is an arm’s-length body within the Ministry of Justice, responsible for the care of young people aged under 18 who are serving sentences in custody or in the community. We also work actively in programmes aimed at diverting young people from crime, and in promoting the positive resettlement of those who have served their sentence. As chairman, I have a responsibility on behalf of the YJB to advise the Secretary of State on matters pertaining to youth justice, and I will certainly be looking to the wide range of experience in this House to help me in that work.

My term of office lasts until March 2017. Being chair of an arm’s-length body does put certain constraints on my political activity. When I was appointed, the Cabinet Office guidance said that I,

“should take a step back from front-line politics”.

On hearing this, a cruel friend from my Labour Party days said, “But you did that when you joined the Liberal Democrats”. On the contrary—I take pride in the fact that the Liberal Democrats served with distinction on the front line in government between 2010 and 2015. We proved that coalition government could work, and I can say, as one who has worked in and around Whitehall and Westminster for the last 50 years, that it was far less faction-ridden and more cohesive than some of the single-party Governments we have seen over that period. No one was called a bastard; nor was anyone accused of being psychologically flawed. As has been said by others, I think history will be kind to us for what we did and the way we did it.

My old mentor Jim Callaghan always gave the old sailor’s advice to those moving on: “Don’t distract the man at the wheel and don’t spit on the deck”. I will try to follow that advice regarding my successor at the MoJ, the noble Lord, Lord Faulks, to whom I send particularly good wishes. However, if I had one piece of valedictory advice it would be this. The gracious Speech indicates the Government’s determination to bring the public finances under control and reduce the deficit. For a department not protected by any ring-fencing or election campaign pledges, that means immediate cuts for the MoJ.

One of the most bruising experiences in my own time as a Minister was the negotiations with the Law Society and the Bar Council about legal aid. I urge the Secretary of State to engage in immediate dialogue with the professions, and indeed with the Opposition, to see whether a long-term agreement can be reached on the size and scope of legal aid and the changes needed in the structure of the legal profession.

In the latest edition of The House magazine, Andrew Caplen, president of the Law Society, says:

“In these times of austerity, we need parliamentarians and the legal profession to work together to build on what we have and develop a justice system fit for the future”.

The Law Society will be working with the new Government and Parliament to make this vision a reality. It will not be easy. Agreement may be very difficult to achieve. But having gone through that period, I say this: unless we try, we will have another five years of trench warfare between the legal professions and the Government. That will not be to the credit of either side.

When I see strikes and walk-outs and members of the legal profession marching outside the Ministry of Justice with placards, I warn them about the credibility of the profession in a difficult time. It is no use everybody coming up with easy solutions. As the Law Society says, this is a time of austerity and the MoJ has a restricted budget; if you want to come up with solutions, come up with practical ones. After all, it was the Labour Party that first cut legal aid; it was the Labour Party that had legal aid cuts in its 2010 manifesto. It does not behove any of us to say, “We’re in favour of legal aid and of getting it sensible, but we don’t agree with this cut or that cut”. Now is the time for some sensible solutions, including from the professions themselves.

I have only one or two other reflections on the gracious Speech. As was said by the noble Lord, Lord Dunlop, and the Prime Minister has made it so, one-nation Toryism is the guideline. So it is ironic that the first programme under that banner calls into question three of one-nation Toryism’s greatest achievements. First, it was a Conservative Government who created the BBC as a public service broadcaster committed to informing, educating and entertaining. If you doubt whether anything is at risk with the BBC, I simply ask you to watch Fox News for five minutes to realise what is being put at risk. Secondly, it was, as has been said by a number of speakers, a Conservative, David Maxwell Fyfe, urged on by Winston Churchill, who provided the decisive legal input into the European Convention on Human Rights that underpins our Human Rights Act. Thirdly, it was of course a Conservative Government under Ted Heath who negotiated our membership of the European Community and cemented that membership through the creation of a single market under Mrs Thatcher and the signing of the Maastricht treaty by John Major. I wish the Prime Minister well in his attempts to negotiate a new settlement with Europe, and I certainly agree with Chancellor Merkel that where there is a will, there is a way. I welcome the Bill to provide for a referendum before the end of 2017, and I hope that the Government will insert a provision for votes at 16 in that referendum, because if they do not, I suspect that this House will.

As for the Human Rights Act, I welcome the fact that the Government have given time for reflection. The problems caused by the Act are more imaginary than real, and Dominic Grieve is right to warn that withdrawal from the ECHR would inflict reputational as well as legal damage on this country. The Government would do well to look carefully at the suggestion by the noble and learned Lord, Lord Mackay, on whether there is a way forward on this.

On all the three matters I have referred to, things would have been handled differently if the Liberal Democrats had still been in government, but we are not. However, as I have said, mishandled they will imperil some of one-nation Conservatism’s finest contributions to our recent history, so flying solo puts added responsibility on the government Benches not to endanger that legacy.

I have a final point, which has come out of the debate. I am so glad that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has picked up the torch on IPPs. As the Minister who took that legislation through the House, I am absolutely sure in my own mind that Parliament thought it was ending IPPs, and Section 128 of the LASPO Act was there because the Lord Chancellor of the day thought that would be the way to do it. I urge the noble and learned Lord to look again at that freedom because this is not going to go away and, as he has indicated, it is a stain on our reputation and not what Parliament intended.

Other than that, I retreat into this semi-purdah, but with the confidence that, as the excellent speech by my noble friend Lord Marks demonstrated, these Benches will not be silent on these issues.

--- Later in debate ---

[Lord Faulks]

My Lords, this has been a lengthy but remarkable debate. It has contained a little bit of post-election blues, understandably, with various suggestions for improving the electoral system. But for the most part it has contained a number of extremely constructive suggestions from all quarters of the House, dealing with the ambitious electoral programme that is part of the gracious Speech. It is unsurprising that your Lordships’ House has looked carefully at all the different Bills and proposals contained in the Speech and has shown already an appetite for scrutiny of which I am sure that we will see evidence in the months to come.

To some extent, I will not have detailed replies to the various suggestions, because of the fact that this is the first Queen’s Speech in the new Parliament, and quite a few of the Bills have not even been published. But what has been said has been extremely valuable, and I can assure the noble Lord, Lord Foulkes, that I shall take back those observations that are relevant to the Secretary of State for Justice. All the comments contained in this debate will be considered carefully by the Government.

I should also like to congratulate our maiden speakers, coming appropriately, given the theme of the debate, from different parts of the United Kingdom. There was the right reverend Prelate the Bishop of Leeds, a veritable northern powerhouse himself. My noble friend Lord Dunlop unusually made his maiden speech from the Dispatch Box; he will be a valuable ministerial colleague. As many noble Lords know, he has great experience in an area in which he will be scrutinised, or the proposals will be scrutinised, in considerable depth. The noble Lord, Lord Lisvane, has kept us waiting a little longer before making his maiden speech, but it was well worth the wait. We are grateful for all their speeches, and I know that they will greatly inform our debates in future.

The Government are committed to governing for the whole of the United Kingdom. We are one country and we will govern with respect, giving due and proper recognition to our four constituent parts and their Governments. Notwithstanding the penetrating analysis by my noble friend Lord Forsyth of some of the difficulties, particularly in relation to Scotland, I share the positive approach shown by the noble Lord, Lord McFall. We should be looking forward. Devolution enables decisions to be taken in closer proximity to the people whom they affect and gives us the safety and security of being part of the bigger United Kingdom family of nations. We believe in rebalancing the economy to enable wealth to be created more fairly and evenly across the whole country. The devolution packages that have been considered in the course of this debate today will provide the incentives necessary to drive growth in each part of the United Kingdom.

In this Parliament we will fulfil our commitments and implement as fast as possible, as is consistent with good government, the further devolution that all parties agreed for Wales and Scotland, and deliver the Stormont House agreement in Northern Ireland. In parallel, we need to have governance arrangements that are fair for England; in that context, we will bring forward the proposals on English votes for English laws.

I acknowledge that there has been a considerable groundswell of support around the House for what has been for the most part described as a constitutional convention, although various other expressions were used in the course of the debate. The Prime Minister has said that he wants to make our United Kingdom work for all our nations. The Government welcome a discussion on how best to do that, including ideas for constitutional discussion and debate. There were some suggestions before the debate that such a convention should draw up a statute or charter of the union, such as a charter most recently recommended by the Bingham Centre for the Rule of Law, referred to by my noble friend Lord Norton of Louth. In the Government’s Command Paper The Implications of Devolution for England, the Conservative Party said that if a constitutional convention or commission was established, it should be concerned with the effective functioning of the union and could consider the case for a statute of the union, but that such a body should not delay plans for further devolution or the introduction of English votes for English laws. There was, of course, no reference to such a convention in the Conservative Party manifesto, as opposed to the manifestos of Labour and the Liberal Democrats.

I know that English votes for English laws was criticised, notably by my noble friend Lord Lawson, who deplored the idea of there being two classes of Members of Parliament. Attention was drawn to the difficulty of identifying issues where the Barnett formula would be excluded. In answer to the noble Lord, Lord Lennie, I am told that there were a number of Bills in the last Parliament which would have satisfied the criteria and that there is one Bill—the education and adoption Bill—to be introduced shortly which will fulfil those criteria. However, the Government are revising Commons rules to make the law-making process fair and sustainable and changes to Standing Orders will ensure that Bills, or parts of Bills, that do not apply to all parts of the UK will be voted on only by MPs representing affected constituents.

Turning to Northern Ireland and the Stormont House agreement, the Bill gives effect to key elements of the Stormont House agreement that will deal with the legacy of the past. There have been problems in relation to welfare reform, as noble Lords are aware, and it has been said that the UK Government may need to take control of welfare. The Government agree that the situation is serious, which is why the Secretary of State has chaired intensive discussions over recent days. Welfare reform is a key part of the agreement. Without it the Executive’s budget does not add up and that potentially puts devolution at risk, so it is essential for everybody that these issues are resolved, as a number of noble Lords said.

Reference was made to the commitments made in the Stormont House agreement to deal with the legacy of the Troubles. The Government will establish a historical investigations unit, provide for an independent commission on information retrieval and establish an oral history archive. The House will recall the outstanding speech of the noble Lord, Lord Bew, which emphasised the importance of contextualising these investigations so that they do not frustrate what should be achieved by them.

As to Wales, I am glad that the noble Baroness, Lady Randerson, so recently associated with Wales in a ministerial capacity, welcomes the changes delivering what the Government have promised, although she indicated that there were certain areas in which she will push for more.

I turn to the Government’s plans to make the criminal justice system work better for victims—a matter which I will deal with, as my noble friend Lord Dunlop said. Measures to increase the rights of victims of crime will make sure that victims receive the support and information from criminal justice organisations to which they are entitled. This is an area on which all parties’ manifestos contained proposals of a similar nature.

Victims often feel let down and they are the people we owe the greatest duty of care towards. Our plans to enhance victims’ rights go hand in hand with the improvements we are making to help victims of crime navigate the criminal justice system, access the information and support they need and protect vulnerable victims and witnesses in court.

In December 2013, the Government implemented a revised victims’ code to give victims clearer entitlements and a louder voice in the criminal justice system with, for the first time, the right to ask to read their personal statement to the court. However, the experience of victims in the criminal justice system too often falls short of what they have a right to expect. Enshrining victims’ rights in primary legislation will make absolutely clear to criminal justice agencies that they must comply with their duties towards victims.

Before I turn to the substantial issue of human rights, I ought to deal with a number of matters which were raised during the debate. On the question of IPP sentences, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has assumed the mantle of Lord Lloyd, recently retired—and a remarkable mantle it is. The noble and learned Lord drew attention to the power that the Secretary of State has to consider responding to the challenge that IPP prisoners face. Of course, he and the House will be aware that a Secretary of State has to consider the individual and their tariff sentence but at the same time has to be minded about the Parole Board’s assessment of whether any individual may be a risk if released into society. It is something that will be on the Secretary of State’s agenda of things to be considered early in his time in office.

The noble Lord, Lord Dubs, referred to assisted dying and the Private Member’s Bill brought forward by the noble and learned Lord, Lord Falconer of Thoroton, in the previous Session of Parliament. I think that the Bill has found its way into the current ballot but is not terribly high up. I do not want to raise expectations in this regard but the Government are aware of the issue and will consider the question during the course of the next months or years.

I am glad that there is a general welcome from the noble Lord, Lord Ramsbotham, and my noble friend Lord Black for the judicial oversight in relation to bail. I know that the noble Lord, Lord Ramsbotham, will hold the Government very much to account in relation to prisons. I am glad that he welcomed certain signs from the Ministry of Justice that the Secretary of State will place a considerable emphasis on education in prisons. I am sure that he will be anxious to ensure that the reforms that were begun in rehabilitation can be maintained and that prisons become a useful place of rehabilitation.

A great deal has been said about the Human Rights Act on all sides which is misleading. The Government were elected with a mandate to replace the Human Rights Act with a Bill of Rights. Human rights and their protection are the hallmarks of a civilised society and this Government will be as committed as any other Government to upholding fundamental human rights. But the truth is that the cause of human rights has been undermined by various failures of the Human Rights Act. We will now look at how to strike an appropriate balance between rights and responsibilities. There is a clear will in the country to ensure that human rights laws are not abused by those who would do us ill. That does not entail weakening fundamental human rights. It is important to emphasise that human rights were protected long before 1998, and they will continue to be protected under a Bill of Rights.

This will be a significant piece of legislation. It will be of interest to many inside Parliament and beyond. Over the coming months we will draw up proposals to implement this vital reform. We will then take time to consult widely and draft legislation which meets the needs of a modern democratic society.

I am sure that the noble and learned Lord, Lord Falconer of Thoroton, who I think welcomed the fact that there was going to be consultation in relation to the Bill, will accept that when one is making constitutional changes, for that is what they will be, it is important to pause. The changes to the role of Lord Chancellor, which he has very frankly admitted were perhaps a little hasty, are an example. We want to try to get this right.

I want to emphasise as strongly as I can that we are not getting rid of human rights, nor are we going to ignore the convention. The Bill of Rights is likely to reflect all the rights in the convention. We are anxious to maintain what has been a very proud history for many centuries of protecting human rights in this country. Human rights were protected by the common law. Human rights were protected by Parliament and will continue to be protected by Parliament. Let us look at the Modern Slavery Act, so recently passed by Parliament. That was not as a result of the Human Rights Act. Of course there is a prohibition on slavery contained in the convention. But our abolition of slavery long preceded the convention and modern slavery was a nuanced response to a particular situation.

During the debate the noble Lord, Lord Cashman, who is not in his place, seemed to imply that some of the advances in the approach to liberal causes were peculiarly as a result of the Human Rights Act. Same-sex marriage—an important piece of legislation brought in by the coalition Government during the last Parliament—had nothing to do with the Human Rights Act. In fact, there was a real anxiety that Strasbourg would prevent it becoming law, because when an attempt had been made to argue that there should be same-sex marriage, it did not succeed in Strasbourg, but because of a triple lock in the Bill it was generally considered—although not by all—that the legislation would survive.

The problem with the Strasbourg jurisprudence is that it has been of variable quality, and there has been a general sense that human rights—a noble aspiration, as has quite rightly been pointed out in this debate, stemming from what happened in the Second World War, finding its realisation in 1948 in the Universal Declaration of Human Rights and finding its way into the European convention—have been diminished by some of the ways in which it has been used. The Supreme Court has felt itself more or less bound, notwithstanding the provisions of Section 2 of the Human Rights Act. The case of Ullah was a wrong turning by the Supreme Court. In recent years, the Supreme Court has gradually begun to establish what is rather quaintly described as a dialogue with Strasbourg. The noble and learned Lord, Lord Hope of Craighead, rightly said that quite a lot of the Strasbourg jurisprudence is now woven into the common law like Japanese knotweed. That may be so, and I do not suggest for a moment that the jurisprudence from Strasbourg is all not of good quality.

Of course, we should not be insular. We should, in developing our law, look beyond our shores to Strasbourg but not only to Strasbourg. Many judges recently, writing extrajudiciously, have emphasised that the common law itself should be growing organically, as it does, that it has been far too centred on reacting one way or another to the Strasbourg jurisprudence, and that it should, in fact, have been looking elsewhere and not peculiarly at Strasbourg, and should sometimes have simply ignored Strasbourg.

We want a British Bill which will reorient our rights in Britain. The Supreme Court should be supreme. My noble friend Lord Flight referred to the fact that the Abu Qatada case went to our Supreme Court and was then overturned in Strasbourg. The beguiling metaphor used by the Labour Party in 1997 and then in the 1998 Act was that it was bringing rights home. In fact, it was subcontracting the rights to a considerable degree to Strasbourg. We want to bring rights home to this country so that they are protected by our Supreme Court and our Parliament—let us have faith in our Parliament to protect rights—rather than by the inconsistent jurisprudence of Strasbourg.

Nevertheless, we want to consult widely. The noble Baroness, Lady Kennedy, said that there has been a commission. Of course, she was a distinguished member of it; I was a less distinguished member. The majority of the commission concluded that there should be a British Bill of Rights. I welcome the fact that the noble Lord, Lord Marks, is not against the idea of a British Bill of Rights, but understandably—and we agree with this—it is what is in the Bill that is important.

It will not be forgotten that in 2007 Gordon Brown published a Green Paper exploring the possibility of a British Bill of Rights. In 2009 the Labour Government launched a consultation process into a Bill of Rights entitled Rights and Responsibilities: Developing Our Constitutional Framework. I hope that this House, in performing its scrutiny, will honour the fact that there is a mandate to produce this Bill, will scrutinise it carefully, perhaps consider some of the suggestions made by my noble and learned friend Lord Mackay about a degree of democratic override and decide what should be in any such Bill.

I conclude by referring to some rather mysterious comments, which I think mostly emanated from the Liberal Democrat Benches, about the Salisbury convention. They first found their way into a speech by the noble and learned Lord, Lord Wallace of Tankerness, on the first day. They were repeated, I think, in some form by the noble Lord, Lord Thomas of Gresford, and then by the noble Baroness, Lady Randerson. I may have misunderstood it but I thought that what was being said was that there was something unsatisfactory about the electoral system. Of course, the psephology was explained by the noble Lord, Lord Rennard. As a result of that, the Liberal Democrats felt comfortable in ignoring the normal convention—the Salisbury convention.

[Lord McNally]

This is straining at gnats. I was a member of the Cunningham commission that looked at the Salisbury convention and put forward a report adopted by this House. It had one very clear point in it; that is, the House of Lords retains the right to say no. If it did not retain that right, there would not be a need for a Parliament Act. That is the only point that is made. The idea that the Salisbury convention, or what was in the Cunningham convention, allows the Government of the day to get their will, whatever their proposals or whatever is said in a Bill, is not in any convention because the House of Lords retains the right to say no. That is all that has ever been said from these Benches.

[Lord Faulks]

That is precisely what I thought was being said by the Liberal Democrats. It is now on the record and I understand that I have been disabused of the misunderstanding that I must have had about the Salisbury convention. I looked at the Library Note and saw what was said about it. In due course, no doubt that will find its expression in a response to various Bills which satisfy the description of unacceptable in one way or another to the Liberal Democrats.

I hope and expect that all the legislation will be scrutinised with great thoroughness from all quarters of this House. I and the Government welcome that. I hope that it will be possible for the Government to fulfil their ambition that this should be a one-nation Government. There has been some competition for ownership of that phrase, originated, I think, by Disraeli. I thought I was a one-nation Conservative. I then found that Ed Miliband was a one-nation politician and, once again, we have attempted to reclaim that expression. It is in fact a noble aspiration—although “aspiration” is another word about which there is some contest.

In any event, I hope that we can be one nation as a result of the legislation, which this House will, no doubt, help to make better and help this Government achieve its aspiration.

Prisoners: Work

Lord McNally Excerpts

Monday 8th December 2014 Lords Chamber

[Lord Faulks]

I thank the noble Baroness for her question. It was a surprising judgment. It related to HM Prison Send, which I recently visited with the noble Lord, Lord Howarth, who sits two places away from the noble Baroness. We visited both libraries there and spoke to the librarian. We attended a readers’ group. Frankly, the provision of books was excellent. There were a number of books written by noble Lords or their relatives. There is no ban on books. There is only an attempt to restrict bringing in drugs, via parcels, inside books. If you are a prisoner you can get books.

[Lord McNally (LD)]

My Lords, I declare an interest as chair of the Youth Justice Board for England and Wales. Does the Minister not agree that the most effective work in prison is that which leads to employment outside? Would he like to take this opportunity to commend those employers who have participated in Through the Gate training towards getting a prisoner a job after imprisonment as a means of rehabilitation and urge other employers to join this scheme?

[Lord Faulks]

I am happy to take that opportunity. The Employers Forum for Reducing Reoffending, which includes employers such as Greggs, DHL and Timpson—the forum is chaired by James Timpson—is providing a valuable service. Halfords is also a recent addition. They offer employment, which is usually in prison, which can then provide a bridge into employment in the community. That is a very important contribution and I am happy to acknowledge it.

Divorce (Financial Provision) Bill [HL]

Lord McNally Excerpts

Friday 27th June 2014 Lords Chamber

[Lord McNally (LD)]

My Lords, I promised the noble Lord, Lord Faulks, when he took over from me in December, that I would not keep popping up like Banquo’s ghost at MoJ debates to reminisce about my past triumphs. I am making an exception today for three reasons, but, first, I thank the noble and learned Lord, Lord Mackay, for his kind words. I do not know about the noble Lord, Lord Faulks, but I always had a slight tingle in the shoulder blades when I found that the noble and learned Lord was in his usual place, just behind an MoJ Minister, although, most times, he dug me out of a hole instead of putting me into one.

As I said, I make the exception for three reasons. First, taking the point of the noble and learned Lord, Lord Mackay, about the thoroughness of the Law Commission, I pay tribute to it and its work. I couple that tribute with praise for what is now the not so new fast-track procedure used in the House of Lords to expedite Law Commission Bills and I couple that praise with praise for the noble and learned Lord, Lord Lloyd of Berwick, who has invariably taken the chair in Committee and guided Law Commission Bills through. As a result, we now have a steady flow of law reforms and updates which greatly benefit our citizens and the law.

My second reason for speaking is to give qualified support for the Bill before us today and to congratulate the noble Baroness, Lady Deech, on the clarity with which she brought the Bill forward. As she told us, divorce is painful, stressful and often costly. It can have a lasting, damaging impact on children. Making the financial consequences of divorce easier to navigate does not undermine marriage. It helps to mitigate the worst consequences of marriage breakdown.

My support for the Bill is qualified because we are still awaiting the Government’s response to the Law Commission’s draft Bill, which is promised for August. I must tell the Minister that I have never liked government responses promised in August. As a rule, they are not the best months for parliamentary scrutiny.

As I understand it, the noble Baroness, Lady Deech, believes that the Law Commission’s draft Bill still leaves loose ends and uncertainties. Critics of her Bill claim that its impact would be much wider than that of the Law Commission recommendations and that it proposes significant changes to the law of financial provision on divorce, not all of which would be welcome. It seems to me that, if the Bill is given a Second Reading today, those are matters that can be examined in detail in Committee. What seems to be common ground is that there is need for action by Parliament to clarify basic principles in this area so that the law better reflects the needs of modern society. I thoroughly agree with the noble Baroness that this is a matter for Parliament, not for judges.

My final reason for intervening has already been referred to by the noble Baroness, Lady Deech. It is to couple my support for action in this area with a reminder to the House that the recently passed Children and Families Act makes it a requirement for a person who wishes to start certain types of family proceedings first to attend a family mediation information and assessment meeting—a MIAM—to find out about and consider mediation rather than going through the stressful experience of going to court. Legal aid is available for that process and there are exemptions to that compulsion where a case is genuinely urgent or there is evidence of domestic violence. Mediation has a good story to tell of thousands of people achieving settlements in a way that is faster, cheaper and less stressful than mud-wrestling through the courts.

The noble Baroness, Lady Deech, told us that development in this area of law has been left to judges for the past 30 years. The Law Commission started its work in 2009. Now is the time for Parliament to step up to the plate and deliver clear and contemporary legislation, which may in the end be a synthesis of the proposals in the Bill, the work done by the Law Commission and the Government’s August response. I hope that in his response today the Minister will indicate that that is his direction of travel.

Offender Rehabilitation Bill [HL]

Lord McNally Excerpts

Tuesday 11th March 2014 Lords Chamber

[Baroness Linklater of Butterstone (LD)]

My Lords, I, too, will say a brief word in support and admiration of the probation service, with which I have worked for most of my professional life. I know how important that infrastructure has been, across the country, to the provision that has been given to people who have been at risk of, and have come out of, offending. It will still exist in a minute way, as 20% of the staff will be left to deal with the most challenging offenders. Thank God for that. The 80% who will no longer be part of this organisation will be reborn through the CRCs, which I hope will be able to do as constructive a job as has been done in the past.

This is a moment to recognise that we are seeing the passing of an organisation that has served this country well for the past 100 years, with a breadth and depth of experience that only time can give. I am sad about that and I want to pay tribute to the service that it has given. I hope that in the brave new world it will still have enough of a voice to allow it to serve us as well as it has in the past.

[Lord McNally (LD)]

My Lords, first I declare an interest as chairman designate of the Youth Justice Board.

I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment tabled by the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.

I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.

I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.

I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity radically to reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.

It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under-12-months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.

That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.

The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.

I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.

I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.

[Lord Beecham (Lab)]

My Lords,

“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[Official Report, 17/4/07; col. 126.]

Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.

Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,

“about more centralised Government control over offender management … a recipe for disaster”.—[Official Report, Commons, 28/2/07; col. 1027.]

A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.

The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.

The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:

“If, at some future point, any Government were to decide that the time was right to open up that area of work”—

that is, offender management—

“they would have to make the case to Parliament, and Parliament would have the final say”.

He went on to describe it as a,

“double lock meaning that any movement after that will require a vote of both Houses”—[Official Report, Commons, 28/2/07; col. 1024.]

That is something that the present Government have been at pains to avoid.

Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Lord McNally Excerpts

Wednesday 11th December 2013 Lords Chamber

I have referred before to the book The Pursuit of Justice by the noble and learned Lord, Lord Woolf. The pursuit of justice is what those of us who have participated in tonight’s debate—and the Minister—are interested in. The pursuit of justice will be made more difficult if the Government press on relentlessly with the changes we are debating tonight. There is still time for them to think again before they inflict great damage on the system in which all of us have, hitherto, taken such pride.

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

My Lords, like the noble Lord, Lord Bach, I have, on a number of occasions, been promoted above my abilities in terms of legal qualifications. I have been referred to this evening as “learned” and I was recently introduced, at a conference, as “Lord Justice McNally”. My more mundane task this evening is to set out the Government’s position on the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 and the Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013. Both these instruments were laid before the House on 1 November 2013.

Before I get into the detail of the two instruments, I want to set the legal aid transformation in context, as was requested by the noble and learned Lord, Lord Hope of Craighead. The need for reform of legal aid-funded services to ensure a cost-effective, sustainable legal aid system is recognised by all the major political parties and has been the subject of debate for a decade or more. It was the Labour Party that instituted the Carter review. It was the Labour Party that made cuts in legal aid prior to 2010 and promised further cuts in its 2010 manifesto. During the passage of LASPO, it said that it would not cut civil legal aid but would cut criminal legal aid. Now, it does not like the legal aid cuts. I still wait to hear whether the Labour Party would restore the legal aid cuts if it were to come into office in 18 months’ time.

The fact is that changes in technology and its increasingly fundamental role in the functioning of the criminal justice system demand the kind of changes to working practice and business models seen throughout the public and private sectors in recent years. The introduction of alternative business structures and an increasingly well informed customer base are examples of changes that present their own challenges, and which the legal professions must meet. Those changes are accompanied by the fact that the number of businesses providing criminal legal aid services now exceeds demand for such services. To put it bluntly, there are too many lawyers seeking the work available. New entrants to the market, new technologies, new working methods and oversupply in relation to demand are all factors that force change in any industry, sector or profession. I urge the Bar to recognise that the change is necessary to deliver efficient and effective legal services in new and innovative ways.

For our part, the Government recognise that the services the profession delivers are a vital component of our legal system and, where necessary, ensure access to justice and equality before the law. That is why, looking more widely, the Lord Chancellor has asked Sir Bill Jeffrey to review the provision of independent criminal advocacy in the courts of England and Wales, as just referred to. That review is intended to consider the experience, skills and future structures that might best support the continuing provision of quality, independent advocacy services. However, alongside the need to ensure access to justice and a healthy, sustainable legal sector, the profession must also recognise that the Government are obliged to seek the best possible value for money from the legal aid budget.

I turn now to the instruments that are the subject of this debate. They apply a reduction of 30% to the legal aid fees paid to litigators and advocates in what are known as very high cost criminal cases, although I will accept the description of them by the noble Lord, Lord Carlile, as being very high complexity cases as well. This will save £19 million per annum in a steady state. The noble Lord, Lord Carlile, will be familiar with these cases; as he told us, he has undertaken this sort of work in the past. For the benefit of others, I should explain briefly that VHCCs are the longest and most expensive Crown Court trials funded by legal aid. Under the current system, they are those cases which are expected to last more than 60 days at trial; the overwhelming majority of them relate to fraud offences of one type or another.

These cases are managed by the Legal Aid Agency under contracts with service providers, with work being agreed in three-month stages in advance as the case progresses. Typically, these cases are complex and run for a number of years; the amount of preparation involved can be enormous. Although the debate today has concentrated on fees in VHCCs, I should also mention, for completeness, that the remuneration regulations also make two other changes to the criminal legal aid scheme. As the noble Lord, Lord Beecham, indicated, they reduce fees paid to most expert witnesses involved in legally aided criminal cases by 20%. They also amend the category of work in which a provider of legal aid services can claim a fee. This is a consequence of the changes in the scope of criminal legal aid for prison law, which is being implemented through separate secondary legislation.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords—

[Lord McNally]

It is very late and noble Lords have all had a very good time.

[Lord Carlile of Berriew]

It is very late, but this is an important debate, as has been made clear. I have one question to ask. If my noble friend thought it right that there should be an extensive consultation on the generality of legal aid, why was there no consultation on VHCC cases?

[Lord McNally]

This is the first time that VHCC cases have been cut by this Government. I do not think that they were cut by the previous Government. Were they? I stand corrected.

There was a consultation and this has not come out of the blue. I have been talking to the Bar for three and a half years about these cuts.

I hope we do not get an interruption from my noble friend Lord Phillips. He came in very late.

[Lord Phillips of Sudbury (LD)]

I was not going to.

[Lord McNally]

Okay, I am sorry—not guilty.

[Lord Phillips of Sudbury]

Does the Minister want me to?

[Lord McNally]

No. These matters have been discussed over a long period. We received 16,000 responses from representative bodies, practitioners and other organisations, individual members of the judiciary, Members of the House of Commons and the House of Lords, individual solicitors and barristers, and members of the public. The majority of responses did not support the Government’s original proposals for reform, although there was some support for particular measures. Some, including the Law Society, specifically acknowledged that VHCCs were an area where the Government might be able to make savings.

As we said in responding to consultation, the Legal Aid Agency analysis of fraud VHCCs shows that the average value of a contract is £1 million and such contracts run for three or four years on average. Even with a 30% reduction in fees VHCCs will remain high-value, long-duration cases that, because of the way these cases are managed with regular phased payments, bring certainty of income for providers for the extended period in which they are instructed in these matters. That is why the Government believe that a reduction in fees is sustainable in this area.

We believe it is right that our reductions should affect advocates who receive higher levels of legal aid fee income, rather than those who are on much lower fee income. In 2012-13, more than half of those with fee income of more than £200,000 worked on VHCCs, compared with just 20% of those with fee income of between £100,000 and £200,000. Just 4% of barristers who earned below £100,000 worked on a VHCC in 2012-13.

Concerns have been raised about the impact of this fee cut on existing contracts. It is precisely because these cases run over a number of years that we must ensure that the ongoing fees represent value for money. We are therefore reducing rates in existing contracts where cases are at a relatively early stage and where the ongoing costs are likely to be significant. I cannot give any assurances about changing the position that we have taken on this because we are under responsibilities to make these cuts.

We have taken a fair and balanced approach to applying the new rates to existing contracts. The new rates do not apply to contracts where cases were at trial on 2 December or those that, before 2 December, were set to come to trial on or before 31 March 2014. These include cases that had a date set at any point in the past for trial on or before 31 March 2014 but that date has been vacated and a new date fixed, even if that trial date is after 31 March 2014; where the trial has taken place but there remain outstanding proceedings, such as confiscation proceedings; and where the original trial has concluded but a retrial will take place, even if the retrial is after 31 March 2014.

A number of points have been raised but I am conscious of both my time limit and the House’s. I have referred to the fact that VHCCs represent a tiny number of total cases; fewer than 1% of the total Crown Court trials over the past year were VHCCs. I understand the points that the noble Lord, Lord Carlile, was making about the returning of cases, but we will just have to see how this works out. I do not want to bandy figures about.

I hope that the Bar itself thinks very carefully about how we navigate through these matters. I believe that when a very distinguished profession talks about going on strike, it crosses a Rubicon that is very difficult to re-cross.

As for the idea of funding legal aid from restrained assets, it may be that one or more parties might put that as a suggestion in their manifesto; maybe we will see that, although I remember the debates in this House about removing jury trial from High Court cases. We have had lots of suggestions but none with the immediacy with which we can address the issue.

I accept the point that was made about the present system being bureaucratic and the hourly rate-based system not being ideal. I cannot remember which noble Lord it was—was it the noble and learned Lord, Lord Woolf?—but one of them got very close to suggesting one case, one fee, which was one of the first things rejected by the Bar when we were having those negotiations that apparently have never taken place. The fact is that we have explored alternatives, and I have no doubt that ideas will continue to be floated.

I have said to my own party and I say to all three parties that, after what has been a very painful period, we should look at how we handle legal aid. As we have said so often, although to listen to some speeches you would not believe it, since 2010 to when this exercise is finished, which is some three or four years away, legal aid will have been cut from just over £2 billion to £1.5 billion. That leaves us with a legal aid expenditure about which I will not bandy words as to whether it is the most generous in the world, but it is an extremely generous allocation of money by the taxpayer. It is incumbent on all parties to see how we can look at that kind of sum and get a better and more efficient outcome from it. That requires a willingness to contemplate change and flexibility from all parts of the legal profession. I would hope that we can look at it in that way.

I hear what my noble and leaned friend Lord Mayhew said about the sacrifices that the high-cost barristers make in losing other business and being out of the loop. However, even with a 30% reduction in fees, VHCCs will remain of high volume and long duration, with regular payments that bring certainty of income to providers. We believe that it will continue to attract lawyers once they come to see the points that are on offer.

There is no sign of a lack of young people entering the profession. We all wish the daughter of the noble Lord, Lord Alton, well in it; she certainly knows where to come for advice.

We are looking at the review under Sir Bill Jeffrey. We cannot accept all the existing contracts but we have, as my noble friend Lord Carlile knows, tried to widen that as far as possible. We had to bring in a cut-off point somewhere. Noble Lords will have heard in many other professions where they have had responsibility the suggestion, “Why don’t you put it off?”, or, “Why don’t you have a review or do it some other way?”. I wish that both the Treasury and the Government worked differently than they do. The noble Baroness, Lady Deech, has the idea that you can, as it were, go across the meadow picking flowers from here and there to finance things. The fact is that my department, as part of an overall spending review in response to a very real economic crisis, has had to take across the board cuts of 23% in 2010, a further 10% after a further review in 2012, and a further 1% in this review. We cannot go plundering other parts of Whitehall to make up the difference. We have to make hard, tough decisions about our expenditure at this moment, and try to make them in the fairest and broadest way that we can. Somebody asked whether we were also targeting other earners. The figures that I have, and I will confirm this, are that the cuts that we have consulted on were of about 7% on average. Of course we have targeted the higher earners.

Noble Lords made a number of points and I have tried to explain the context. We have had a very frank debate. I will close by saying to the noble and learned Baroness, Lady Scotland, that my right honourable friend the Lord Chancellor is well aware of his responsibilities and those of his office. I am sure that he will read the report of this debate in Hansard very carefully. I hope that in the mean time the noble Lord, Lord Carlile, will withdraw his Motion.

[Lord Carlile of Berriew]

My Lords, it is now 11 pm so I shall be very brief but I do want to reply to the debate. Twelve out of the 13 Members of your Lordships’ House who have spoken in this debate have spoken consistently with the same thread, criticising the Government for the introduction of these statutory instruments. As I listened to those contributions, I reminded myself of what a privilege it is to be a Member of your Lordships’ House. There were magnificent speeches, many of them from the Cross Benches, three from noble and learned Lords who have held very senior positions in the judiciary, and two from noble and learned Members of this House who have been Attorney-General on opposite sides, with very different types of practice in their experience.

I believe that your Lordships have provided my noble friend the Minster with the finest debating tutorial he could ever have had and that the Lord Chancellor could ever have had in how wrong the Government’s decision to introduce these statutory instruments has been.

[Lord McNally]

My noble friend interrupted me and I shall interrupt him just once. It is only for this reflection: yes, we have had a good debate and I do not doubt the eminence of those who contributed to it, but I have said it before: the legal profession must not exist in a bubble and congratulate or commiserate with itself. I sometimes wish that this House was full to the gunwales so that we could have a proper debate on these matters and see whether this unanimity of view about the sufferings of the legal profession was quite so evenly spread as a debate like this might sometimes indicate.

[Lord Carlile of Berriew]

My noble friend is a much liked, popular and witty Member of this House and I will not rise to the uncharacteristic and unjustified provocation of that intervention. I was about to say that I hope that the Lord Chancellor himself will read every word of this debate and will take note of what I think I described earlier as the finest debating tutorial one could have. If my noble friend is saying that all that has happened in this House in the past couple of hours has been a demonstration of self-interest by lawyers, one or two non-lawyers, judges and others who are acting in concert to defy the Government then, in my view, that demeans what has been a magnificent debate. I thank all those who have taken part for giving me the privilege that I described earlier.

I have some sympathy for my noble friend the Minister who sought to respond to the debate. He read out a familiar litany, but it was a litany without a message save the message of mistake. He allowed himself to stray into the suggestion that there had been consultation about the VHCC changes. He sought to elide into the VHCC changes consultation that had taken place on completely different legal issues. It is important to emphasise at the end of this debate that there was no—zero, zilch—consultation on these VHCC changes, and that is fundamental to the complaint that the Bar makes about the high-handed way in which this unilateral breach of contract has occurred.

My noble friend said that the Government were “under responsibilities to make these cuts”—those were his very words; I noted them as he said them. However, with great respect to my noble friend, that phrase is meaningless. The Government have the responsibility to get it right, not just to make cuts for the sake of making them. He said in relation to what is going to happen to these VHCC cases, in which there are now no advocates, that “we will just have to see how this works out”. That took my breath away. It is an acceptance that there are now cases with no advocates, that there is no plan B for these cases and that the promises that the Government made to everyone that it would all be all right on the day have simply been shown to be wrong. I would never accuse my noble friend of being incoherent but the brief that he had was full of incoherence, and we saw it displayed this evening.

At this late hour, I do not propose to divide the House but I believe that I do not need to do so. This debate has been well worth having because of its overwhelming effect of showing that the Government are wrong in what they have done with these cases and that the explanation which my noble friend sought to give just did not hold water at all. With the permission of the House, I beg leave to withdraw the Motion.