Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.

However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.

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

My Lords, it is warming to find a clause in the Bill that has such general approval. Amendment 3 seeks to amend Clause 1(3) to make the power of the Lord Chancellor in relation to the provision of information a duty. This amendment is not appropriate. The duties of the Lord Chancellor under this Bill relate to the provision of legal aid for those who qualify for it in accordance with Part 1. In contract, this subsection is aimed in particular at enabling the Lord Chancellor to direct those ineligible for legal aid to other sources of advice. In the future this may include the provision of referral to paid-for advice through a telephone helpline service. The Government have decided not to implement the proposal at this stage, but intend to run a pilot scheme. The intention is that any individual who is seeking legally aided services but is ineligible for legal aid advice could be signposted to other sources of advice that may be able to assist them in their problem. However, to create a duty in this regard would be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all encompassing service. In a sense, the debate has covered demands for that much broader service, but I still maintain that we cannot make this a bounden duty on the Lord Chancellor. However, it takes us in a direction that is interesting so far as this debate is concerned and, indeed, in the way our legal services are being developed.

Some of the issues raised by the noble Lord, Lord Bach, and my noble friend Lord Phillips go far beyond the responsibilities of the Ministry of Justice and of the Bill about the rights and responsibilities of the citizen in our society. However, I accept that it is sensible to address the need for a better understanding of how the justice system works and allow the citizen a more fully understood access to it.

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[Lord McNally]

He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.

Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.

The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.

Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.

I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.

These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.

I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.

We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.

[Lord Bach]

I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.

I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.

Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,

“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.

We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:

“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,

so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.

I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.

[Lord McNally]

I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.

[Lord Bach]

We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.

I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.

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[Lord Phillips of Sudbury]

My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.

I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.

[Lord McNally]

I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.

I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.

I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.

I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.

We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.

The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.

Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.

The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.

I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.

The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.

In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.

Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.

Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.

As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.

Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.

On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.

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[Lord McNally]

I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.

[Lord Bach]

I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.

The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.

What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.

Political Party Funding

Lord McNally Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Tyler]

To ask Her Majesty’s Government when they will respond to the report of the Committee on Standards in Public Life on party funding.

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

My Lords, the Government are grateful to the committee for its report and will consider its recommendations before providing a formal response. The Deputy Prime Minister set out the Government’s proposed approach to party funding reform in his Written Ministerial Statement of 23 November.

[Lord Tyler]

Can my noble friend give us an assurance that unlike under the previous Administration, the most reluctant and recalcitrant participants in this process will not be allowed to delay everything, and will not be given a complete veto on progress? In particular, may I suggest that we should start with immediate action to stop the arms race in expenditure, both at the constituency level—targeting constituencies as well as national constituencies—and before, as well as during, campaigns? This could achieve some cross-party agreement, and of course would be very popular with the long-suffering public.

[Lord McNally]

My Lords, I welcome those suggestions from my noble friend, which I will pass on to the Deputy Prime Minister. In his Statement that I referred to, he said:

“The Government believe that the case cannot be made for greater state funding of political parties at a time when budgets are being squeezed and economic recovery remains the highest priority. But there is a case for looking carefully at whether existing levels of support could be used more effectively”.—[Official Report, Commons, 23/11/11; col. 25WS.]

I would have thought that some of the suggestions that my noble friend made could be brought into that general consultation with all political parties.

[Lord Maclennan of Rogart]

My Lords, will my noble friend indicate whether the advice that has been given will be followed in time to influence elections that are going to be pending quite soon? In particular, having borne in mind that the Government have been speedy in altering the structure of constituencies, will they also take into account the importance of fair dos in spending to affect these forthcoming elections?

[Lord McNally]

My Lords, even this report recommends that nothing that it suggests should come in before 2015, but the Deputy Prime Minister has indicated that all political parties are welcome to have broad discussions with him, and these matters could form part of those discussions.

[Lord Grocott]

My Lords, I feel a little light-headed because I think I may agree with the noble Lord, Lord Tyler. Obviously, to make elections fairer it is not just a question of where competing candidates and parties raise their money from, it is also how much they spend. This has long been acknowledged at the level of constituency party campaigning. Surely, whatever else we may disagree on, none of us would want elections to take the form, in terms of expenditure, that is the case in the United States, where the most obscene levels of expenditure are required even to begin to get off the ground. Can the Government focus their attention on looking at the ways in which total expenditure can be minimised, particularly at a national level? At least we could make some progress on that, even if the other side of the equation is more difficult.

[Lord McNally]

My Lords, not only do I feel light-headed, I think I am going to swoon away: I think I agree with the noble Lord, Lord Grocott. Yes, I fully agree with him. As the Deputy Prime Minister has rightly said, this is obviously not the time to try the fundamental reforms that this report, and indeed the Hayden Phillips report before it, recommended. However, there is an opportunity to engage in discussions to see if we can do things within current frameworks to address some of the issues he raised. That would be a very fruitful use of time in this Parliament.

[Lord Tebbit]

My Lords, while I too agree with a good deal of what has been said, does my noble friend not agree that it would be very dangerous if we were to set maximum levels of expenditure for the parties which were convenient for a party which could attract less than 10 per cent of the electorate, as opposed to major parties which attract somewhere around 40 per cent of the electorate? Perhaps it was a little dangerous for my right honourable friend the Prime Minister to leave this matter in the care of his deputy, who does not seem quite to be on song with the rest of the Government.

[Lord McNally]

For a party that has pretty consistently polled over 20 per cent of the vote in recent general elections, there is certainly no self-interest about the 10 per cent figure. Indeed, we should all wait for the next election, which as we all know, usefully, is in 2015. Four years is a long time in politics.

[Baroness Hayter of Kentish Town]

Given that we are all in agreement, maybe I should say that I agree with Nick.

Given that the Liberal Democrat manifesto promised to get big money out of politics by capping donations at £10,000, would not the best way of ending the big donor culture perhaps be for the Minister’s party to return Michael Brown’s money—money that was not his to give and should never have been accepted?

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[Lord McNally]

That was a good growl of approval. It is not for me, as a member of the party of Lloyd George, to lecture anybody on party political funding. However, I have been pressing for party political funding reform all my political life, and I can assure the noble Baroness that this affects all parties. The problem about this culture of forcing our parties to raise big money from big donors, as I have said many times from those Benches and I say now from this Bench, is that the regime is corrupting of our political system, and the sooner we can get rid of it the better.

Justice: Pre-trial Publicity

Lord McNally Excerpts

Wednesday 14th December 2011 Lords Chamber

[Baroness Quin]

To ask Her Majesty’s Government whether they are considering legislation to strengthen measures against pre-trial publicity which may prejudice a fair trial or undermine the principle of the presumption of innocence.

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

My Lords, there are no current plans to legislate. The Government referred the subject to the Law Commission in the summer and we will study with interest its conclusions in due course.

[Baroness Quin]

My Lords, this Question was prompted by the case of Mr Jefferies in particular. He recently gave evidence to the Leveson inquiry and described how, although innocent of any crime, he was vilified in the press to such an extent that he was in fear of his life. Any of us as citizens could imagine ourselves being caught in such circumstances simply by being linked through coincidence or circumstance to a crime. Although I welcome the fact that the Attorney-General has shown himself willing to prosecute in such cases, will the Government none the less look at amending, for example, the Contempt of Court Act so that action can be taken at an earlier stage rather than when havoc has already been wrought on innocent victims’ lives?

[Noble Lords]

Hear, hear!

[Lord McNally]

My Lords, I think that the response to the noble Baroness’s question reflects concern in all parts of the House about this matter. There are a number of problems with the operation of the contempt laws which are set out in detail in the Law Commission’s Eleventh Programme. Since 1981, when the Contempt of Court Act was enacted, the world of publishing has evolved considerably in terms of technology and the structure of the media, and the internet is now a significant influence in this area. That is why we have referred the matter to the Law Commission. In no sense should this be taken as our kicking it into the long grass or as the Attorney-General not appreciating the real public concern about these matters.

[Lord Thomas of Gresford]

My Lords, some in the press take a gamble with pre-trial publicity that the suspect will be charged and convicted, after which there will, of course, be no proceedings. In the McCann and Jefferies cases, they then became completely contrite and settled the claims without any question. Should they not lose a day’s edition as a result of circumstances as bad as that? Can we not have measures that will really bite on the press when it goes astray?

[Lord McNally]

My Lords, my noble friend’s idea is an interesting one. I understand—just a thought—that an editor has not been sent to prison for contempt since 1948. The Attorney-General, who has been alive to this matter, said in a lecture at City University on 1 December that, in his opinion, the press has been pushing at the boundaries and in a sense has subtly been seeking guidance on what is acceptable. I hope that the Attorney-General’s action has given it suitable guidance that we take this matter very seriously.

[Lord Morris of Aberavon]

My Lords, while I am confident that the Attorney-General will keep a watchful eye on this issue and commence proceedings, as he has indicated, where necessary—as I had to do two or three times—I also wonder whether standards have deteriorated. Have there been discussions—should there be discussions—with the press generally to try to avoid prejudice long before contempt proceedings have to be contemplated?

[Lord McNally]

My Lords, I agree with the noble and learned former Attorney-General. At the City University lecture to which I referred, the Attorney-General said that it appeared to him that,

“the press had lost any sense of internal constraint and felt able, indeed entitled, to print what they wished, shielded by the right of ‘freedom of expression’ without any of the concomitant responsibilities”.

We are indeed making it clear to newspapers that the law exists in this area. As he has already demonstrated, the Attorney-General is willing to follow the example of his predecessor and take action under that law.

[Lord Cormack]

My Lords, it is not only the press which is to blame here; the police made no secret of the fact that they had arrested Mr Jefferies on suspicion of murder. Should there not be a prohibition on the police announcing that sort of arrest until someone is actually charged with an offence?

[Lord McNally]

Again, that is very sensible. One of the things that has come out of recent revelations is a perhaps unhealthy linkage between the press and the police in high-profile cases. The police themselves should be very concerned to observe all proprieties when dealing with such serious matters.

[Lord Pannick]

Will the Minister bear in mind that the Contempt of Court Act 1981 liberalised the law precisely because the previous law restricted newspapers from publicising matters of public interest, in particular scandals such as the thalidomide affair?

[Lord McNally]

My Lords, we are aware of that, and we are very concerned to make sure that we get the balance right. However, where the press’s desire to sensationalise actually jeopardises a case, either by prejudicing the case against an innocent man or, almost as bad, so prejudicing a case that someone who is guilty has to be released, it cannot be in the interests of justice.

[Lord Richard]

My Lords, the noble Lord has told us what the Government intend to do and I think that they are wise to involve the Law Commission in this matter. However, he will know, as we all do, that Parliament’s record in implementing the Law Commission’s reports is not exactly very good—it is not a speedy process. Will the noble Lord note, certainly from the mood of the House this afternoon, that if the Law Commission reports on this, the feeling would be that it is not a report that can hang around for two, three or four years before Parliament looks at it? The matter will need some urgency once they have had a look at it.

[Lord McNally]

I thank the noble Lord for his comments. I am the Minister responsible for liaison with the Law Commission. One of the things I said to Mr Justice Munby, the retiring head of the Law Commission, is that during my stewardship I would hope that we could remedy some of the faults that he indicated and that, certainly on this point, we would approach any Law Commission report with a due sense of urgency.

[Baroness O'Neill of Bengarve]

Does the Minister agree that one of the problems is that the media have confused their right of freedom of expression, which in the European convention contains many legitimate restrictions, with the rights of self-expression which we may accord to individuals without damage to others?

[Lord McNally]

I agree, but also the law is very clear. I tend to agree with the Attorney-General that the media have been pushing the envelope of the law to an extreme. That is why he is taking action.

Prisons: HM Young Offender Institution Feltham

Lord McNally Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what action they are taking to prevent prisoner escort vans delivering young offenders to Her Majesty’s Young Offender Institution Feltham after the contracted time of 7.30 pm.

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

My Lords, the safe delivery of vulnerable young people is a priority, and we scrutinise contract reasons for any late arrivals. We monitor the contractors’ performance continuously and are working closely with them to address any concerns regarding late arrivals to Her Majesty’s Prison Feltham.

[Lord Ramsbotham]

My Lords, I thank the Minister for that reply. This is not a new problem, although this present contractor started work only at the end of August. Over 10 years ago, when I went into the same problem, I discovered the reason was that, in order to save money, the contractor was using the drivers as court orderlies, and therefore they could not start delivering prisoners until after the courts had closed. This is actually a foul and was leading to considerable trouble. Can the Minister tell the House whether this practice is still going on and, if so, whether steps will be taken to stop it?

[Lord McNally]

My Lords, I am not aware that that practice is still going on. However, I shall investigate the matter and write to the noble Lord. It is true that some late arrivals are due to the fact that courts can sit until eight o’clock and travel time often depends on the traffic. Between the end of a case and departure from the court, post-court reports have to be prepared at the sentencing court by the YOT concerned and this can also cause some delay. However, with regard to the point that the noble Lord raises, I shall simply have to investigate.

[Baroness Sharples]

Can my noble friend tell us the name of the contractor?

[Lord McNally]

I can indeed. Serco and Wincanton are the contractors.

[Lord Dholakia]

My Lords, the criminal justice system treats young offenders differently from adult offenders, yet the latest available figures show that there have been just over 2,800 cases where young offenders have had to share transport with adult offenders. Will the Minister ensure that this practice is stopped now that the new contracts are being awarded, and should that not form part of the contractual obligation with the firms being awarded these contracts?

[Lord McNally]

My Lords, we have to accept the certain realism that occasionally there will be dual use of vehicles. However, that is not something that we want and, indeed, as part of the new contract the contractors are bringing in specially designed hybrid vehicles with sliding partitions to separate prisoners of different age groups and different sexes. This will, we hope, allow the contractors to maximise the use of the vehicle fleet and to reduce costs.

[Lord Boswell of Aynho]

Given my own experience as a constituency MP for a different young offenders institution, will the noble Lord accept that this is by no means a local problem? It seems to have been going on for a very long time. Will he look in particular at the human side of this, because often these are young people, many of whom have just been sentenced for the first time? Will he recognise that if they arrive late, the hour is bound to be late; they are probably extremely tired; they might not have been fed and they might even be frightened? Is it not important that we address this?

[Lord McNally]

Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.

[Lord Bach]

My Lords, this is a Question about youth justice and I broaden it slightly. The Minister will know that the Government’s own impact assessment for the legal aid Bill, which is before this House at the moment, states that the proposals in Part 1 of the Bill—that is, the cutting of legal laid for social welfare law—generate a risk of increased criminality. It states:

“This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes in future”.

What is the Government’s estimate of the number of young people likely to be affected by these changes—specifically the likely number of young offenders—and how does that fit in with the Government’s policy of reducing youth crime?

[Lord McNally]

My Lords, we will have a very thorough opportunity to discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. Impact assessments are what they are—assessments. It may be that some of the concerns do not arise; other factors may come into play. Therefore, I do not think it is realistic for me to give an answer to that speculative question.

Community Justice Centre: North Liverpool

Lord McNally Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Storey]

To ask Her Majesty’s Government to what extent the North Liverpool Community Justice Centre has met its intended objectives, what plans they have for this centre, and what improvements they would envisage to this model if it were to be further replicated.

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

My Lords, we are evaluating the impact of the centre on reoffending, and on the efficiency of court processes and use of resources. The result will be published by the Ministry of Justice. The centre is continuing to operate and we continue to share its learning across the criminal justice system and court estate.

[Lord Storey]

I am grateful for my noble friend’s reply. He will know that there is little real hard evidence of this pioneering community court’s work, particularly its involvement in the community itself. What criteria will be used and will those criteria involve the community court itself?

[Lord McNally]

My Lords, the inquiry is looking at the impact on reoffending and the efficiency of process. Its findings are not yet available for release because that work is not yet completed, but I would find it inconceivable that the court itself and those who work in it had not fed into that inquiry.

[The Lord Bishop of Liverpool]

My Lords, could the Minister could tell the House whether the Ministry of Justice has done an assessment of areas of deprivation in other cities where a community justice centre would be appropriate?

[Lord McNally]

No, my Lords, we will look at the impact of this centre before we would contemplate doing this in any other cities, but I take the point made by the right reverend Prelate the Lord Bishop of Liverpool that this is operating in an area of very high deprivation, which I hope will be part of the assessment which the inquiry is making, taking note that it is in a particular area.

[Lord Bach]

My Lords, in answering a question by the right reverend Prelate on 21 June, the Minister told the House that the evaluation that the Ministry of Justice, I think, is doing internally, would be completed later in the summer. We have had very clement weather for the last few months, but no one could say that it was still summer. Has the evaluation been completed yet? If it has not, when will it be completed, and will the results be published?

[Lord McNally]

My Lords, it is always dangerous to give even vague dates, like “summer”, in making commitments. The study is still going on. I am confident of the integrity of the research, which is being carried out by Ministry of Justice analysts under the Government social research code. The research will be published by the Ministry of Justice. I think the safest commitment I could make now would be “as soon as possible”

[Lord Alton of Liverpool]

My Lords, before that research is published, will the noble Lord be wary of comparing oranges with apples? What this North Liverpool Community Justice Centre does is very different from other existing systems elsewhere in the country. This is a pioneering scheme. It was introduced on the advice of my noble and learned friend, Lord Woolf, and was opened by the noble and learned Baroness, Lady Scotland. Will the noble Lord ensure that their advice is taken into account and that a genuinely independent assessment is made, and that it will be not be abandoned simply for cost-cutting reasons, which may appear prudent at the time, but in the long term might not save anything at all?

[Lord McNally]

I hear the “hear, hears”, but of course cost does have to come into all these things. I do genuinely believe that this is being looked at. It is a freestanding experiment, as the noble Lord said, based upon the Red Hook Community Justice Center in New York. The truth is that we are looking at various experiments across the piece, some of which were started by the previous Administration, to find out about the effective administration of justice. I can promise that we are looking for legislative time for a justice reform Bill and that we are also looking at justice delivery in the north-west. The inquiry that the noble Lord, Lord Storey, asked about will be seen as a freestanding contribution without prejudice to the decisions that we have to make in that area.

[Lord Greaves]

My Lords, this is a unique and very innovative scheme. Can my noble friend, who has given quite positive answers so far, tell us whether the valuation is basically a statistical evaluation based upon reoffending rates, the cost per case and so on, or will the evaluation also involve discussions and interviews with offenders who have gone through the system and hopefully benefited from it, and with other people living in the community who have been affected by it?

[Lord McNally]

I would hope that it is the kind of more holistic inquiry that my noble friend suggests. That is what we are trying to do, obviously within budgetary constraints. We are examining various ideas and experiments in the United Kingdom, the United States and around the world, to see how best practice and best efficiency can be achieved. That is what we hope will be the outcome of this inquiry and future development of policy.

[Baroness Scotland of Asthal]

My Lords, I wonder whether the noble Lord will be able to tell us whether the learning from the North Liverpool Community Justice Centre that was spread to places like Salford has been and is going to be continued.

--- Later in debate ---

[Lord McNally]

As I understand it, it is continued. As I said in my opening remarks, it is spread across the estate and will continue to do so. I had better not say that it will continue as long as the centre is open, because then you will think of something dubious about that, but it will continue to be spread across the estate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Wednesday 30th November 2011 Lords Chamber

Moved By

[Lord McNally]

That it be an instruction to the Committee of the Whole House to which the Legal Aid, Sentencing and Punishment of Offenders Bill has been committed that they consider the bill in the following order:

Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 37, Schedule 4, Clause 38, Schedule 5, Clause 39, Schedule 6, Clauses 40 to 59, Schedules 7 and 8, Clauses 60 to 64, Schedule 9, Clauses 65 to 82, Schedule 10, Clause 83, Schedule 11, Clauses 84 to 98, Schedule 12, Clauses 99 to 102, Schedule 13, Clause 103, Schedule 14, Clauses 104 to 111, Schedule 15, Clauses 112 to 114, Schedules 16 and 17, Clause 115, Schedule 18, Clause 116, Schedule 19, Clauses 117 to 121, Schedule 20, Clauses 122 to 124, Schedule 21, Clauses 125 to 128, Schedule 22, Clause 129, Schedule 23, Clauses 130 to 137.

Motion agreed.

Business of the House

Lord McNally Excerpts

Thursday 24th November 2011 Lords Chamber

[Lord McNally]

That the debates on the Motions in the names of Lord Sugar and Baroness Pitkeathley set down for today shall each be limited to 2½ hours.

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

My Lords, I beg to move the Motion standing in the name of my noble friend Lord Strathclyde on the Order Paper.

[Lord Barnett]

While the noble Lord is on his feet, I wonder if he could reply to a business question. On 8 November the Leader of the House, the noble Lord, Lord Strathclyde, promised a debate on Europe. When will it take place?

[Lord McNally]

I am reliably advised that the debate is included in the forthcoming business and will be held on 1 December.

[Lord Cormack]

My Lords, will the debate be held on the Floor of the House or in the Moses Room? Most of us feel that it should be on the former.

[Lord McNally]

By agreement with the usual channels, it will be held in the Moses Room.

Motion agreed.

Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (No. 2) Order 2011

Lord McNally Excerpts

Wednesday 23rd November 2011 Lords Chamber

Moved By

[Lord McNally]

That the draft orders laid before the House on 15 September and 17 October be approved.

Relevant documents: 29th and 30th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 15 November.

Motions agreed.

Public Bodies Bill [HL]

Lord McNally Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Lord McNally]

That the House do agree with the Commons in their Amendment 47.

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

My Lords, to assist the House, I will move the Motion on Amendment 47 formally because that will enable the noble Lord, Lord Ramsbotham, to move his Amendment 47A, to which I intend to speak in support.

Amendment 47A (to the Motion on Amendment 47)

Moved by

--- Later in debate ---

[Baroness Royall of Blaisdon]

My Lords, I too was going to speak about heaven and sinners, as did the noble Lord, Lord Elton. But I would like to put on record that the sinner in this case is not the Minister, who I know will have done a fantastic job in persuading the department of the folly of its ways. The Minister himself is certainly not a sinner; he is more heavenly.

We on these Benches are absolutely delighted that the Government are doing the right thing. It might seem churlish, but I have to say that I wonder why it has taken a whole year for them to reach that decision. It was a whole year of insecurity, not just for the Youth Justice Board but for the youth justice system itself. As we know, the Youth Justice Board does a splendid job. By any standard of measurement it is a success story. As the noble Lord, Lord Ramsbotham, and others have said, following this summer’s disturbances —when there is, properly, great consideration being given to the need to tackle youth crime—the need for this excellent body is even greater. We should heed the wise words of the noble Lord, Lord Ramsbotham, and look at the increased potential of this particular body in the difficult times in which we live.

We should pay tribute to the work of the Youth Justice Board itself, but also to the work and the voice of noble Lords all around this Chamber, led by the noble Lord, Lord Ramsbotham, the noble and learned Lord, Lord Woolf, my noble and learned friend Lady Scotland, my noble friend Lord Warner, the noble Baroness, Lady Linklater, and others, all of whom have played a huge role in persuading the Government that it would have been wrong to abolish this excellent board. Long may it continue in its excellent work, which is to the benefit of the youth of this country, but also to the benefit of each and every citizen of this country.

[Lord McNally]

My Lords, I will certainly wish to see in Hansard the description of me by the noble Baroness, Lady Royall, as heavenly. I will see what can be done about getting the remarks of the noble Lord, Lord Warner, expunged, because they definitely would be career threatening.

I intervene briefly to make it clear that, as I said at the beginning, we will not be asking the House to oppose the noble Lord’s amendment, and therefore ask to insist upon the amendment to remove the Youth Justice Board from Schedule 1 to the Public Bodies Bill. Noble Lords will recall that this House removed the YJB from the Bill on Report in March. Subsequently, a government amendment reintroduced it to the Bill in the other place. The Government realise that the future of the Youth Justice Board is an emotive issue. It is an issue in which this House has always taken the closest interest. It has therefore not been a surprise that noble Lords have scrutinised and challenged our plans for the future governance of youth justice.

I want to be absolutely clear that this Government remain committed to maintaining a distinct focus on the needs of children and young people in the youth justice system. We have never proposed to remove youth offending teams, nor have we ever proposed to dismantle the dedicated secure estate for young people or to effect a takeover of youth justice by the National Offender Management Service. We always intended it to be kept separate. The Government have consistently made clear that we want to build on the strengths of the Youth Justice Board. We recognise that since it was established by the Crime and Disorder Act 1998 the Youth Justice Board has helped to transform the youth justice system. It oversaw the establishment of local youth offending teams, and has fulfilled an important role in reducing offending and reoffending among young people. It has also driven up standards in the discrete secure estate for young people.

During the debate on the future of youth justice, the Government set out to persuade Parliament that now that an effective youth justice system was in place, the oversight provided by the YJB was no longer required and direct ministerial accountability for youth justice should be restored. However, we have listened to the debates in both Houses during the passage of the Bill. We have listened to the points raised by respondents to the MoJ consultation and in the responses to our Green Paper. We acknowledged that there was considerable opposition to our proposal to abolish the Youth Justice Board. I must be clear, though, that the abolition has never been about saving money—the MoJ does not have major savings contingent on its abolition. That is why we are no longer pursuing the abolition of the Youth Justice Board as part of this Bill.

The Government still believe that there should be more direct ministerial accountability and involvement in youth justice. We believe, as many in this House believe, that there is a strong case for reform of the Youth Justice Board, and we will consider our options for achieving reform outside the Public Bodies Bill. For example, we have wide-ranging powers already open to us under the Crime and Disorder Act 1998 and other powers, which the noble Baroness, Lady Linklater, and I think at an earlier date my noble friend Lord Elton, referred to. We will consider whether we can use these powers in the context of more direct ministerial accountability but will do so in consultation with the Youth Justice Board and with the intention of working harmoniously with it.

I also have to put on record that the Youth Justice Board will remain within the context of the Cabinet Office’s policy on public bodies and its stipulation that all non-departmental public bodies should be reviewed at least once every three years. I will also remind the Cabinet Office that your Lordships’ House will continue to keep a close interest in the Youth Justice Board, so if it wants to back into that bacon-slicer again in three years’ time, it is up to the Cabinet Office.

I know that at these times this House can get very self-congratulatory, but tribute has been paid and the noble Baroness, Lady Royall, read out the roll of honour. I have been in this House long enough to know that when the Ramsbothams, the Eltons and the Linklaters coalesce with the Warners, you are in trouble as a Minister. That was true in the previous Administration as well. The other point that has come through in contribution after contribution is that the real influence and power in all this has been the reputation of the YJB itself. It has been able to call on friends in its time of need because of that reputation. I associate myself with the tributes that have been paid on all sides of the House to its response to the riots during the summer and the very effective way in which it dealt with the problems of young people at that time.

I assure the House that we will continue to work closely with the YJB on all our youth justice priorities. Indeed, I want to put on record, as others have done and as I did in Questions earlier in the year about this, a sincere tribute to the work of Frances Done, the chair, and John Drew, the chief executive, and all the staff of the Youth Justice Board, who have carried on meeting the needs of the most vulnerable groups of young people over the last year while under the threat of abolition. I fully appreciate that that is not a happy position to be in. However, I can also say with absolute certainty that, even through this difficult period, the working relationship between the Ministry of Justice and the Youth Justice Board has been maintained effectively and at the highest standard. That is a tribute to the leadership and the staff of the board. The Government therefore support the noble Lord in his amendment and ask that this House insists on this amendment as passed.

--- Later in debate ---

Moved by

[Lord McNally]

That the House do agree with the Commons in their Amendment 49.

Amendment 49A (to the Motion on Amendment 49)

Tabled by

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, I am as delighted as anybody by what has happened on the previous amendment. I am also pleased that a concession has been offered to the noble Baroness, Lady Finlay, though I do not yet know what her reaction to it will be. I bound to say that that leaves me feeling slightly plaintive as the only one to whose modest concerns the Government appear to be unwilling to make any move at all. I have down an amendment in lieu but that is not the one that I am moving. I made it clear to the Minister earlier this morning that I would only move the amendment if it had any attraction to the Government as allowing them to make a move in my direction.

[Lord McNally]

I am advised that if the noble Lord is not going to move these, he should now speak to the amendment that he is going to move, which is Amendment 49C.

[Lord Newton of Braintree]

I am sorry. Because of the complexities of this process, on which I had taken advice earlier, that is certainly right. I am not moving Amendment 49A, a point on which I had given the Minister notice earlier. I intend to move Amendment 49C.

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, I beg to move Amendment 49C, with which I also wish to speak to Amendments 50A, 51A and 54A, which are related to the other amendments in what I regard as a group.

These amendments are designed to preserve some amendments inserted into the Bill by this House on an amendment of mine at Report—an amendment on which I had strong support from various parts of the House, including my noble and learned friends Lord Mackay and Lord Howe of Aberavon, and the noble and learned Lord, Lord Woolf, who I am delighted to see in his place. My noble and learned friend Lord Mackay is manifestly not in his place, because I am. I do not want to read too much into that; he supported me before and I have not checked what his view would have been on this occasion, though I hope he would have continued to support me.

The purpose of my amendments was not to frustrate the Government’s original intention to abolish the Administrative Justice and Tribunals Council, if that is what they continue to wish to do, but simply to give them scope for greater flexibility if they wanted to do something more creative, on reflection. Let me be quite explicit in respect of the Civil Justice Council, which is named in some of these amendments. I say this particularly to the noble and learned Lord, Lord Woolf. I had neither wish nor intention to damage the Civil Justice Council in any way, but I have long thought that there could be scope for some rationalisation between these bodies, and I am encouraged by the fact that the Master of the Rolls appeared to indicate that view in his remarks to the annual conference of the AJTC last week.

I shall not rehearse the arguments, as I set them out pretty fully on Report and noble Lords are slightly past wanting to hear them. But I shall make 10 points. First, good administrative justice—a fair system accepted by citizens for resolving disputes between the citizen and the state—is part of the bedrock of a society like ours. The second is that the Ministry of Justice has a sort of responsibility in this area, but its main specific responsibility is simply for that part of it that is covered by the Tribunals Service, not by much other essential machinery. It is not responsible for local authority tribunals, including those very important ones, to many citizens, that deal with education, exclusion and appeal matters and other local authority issues. It has no policy responsibility for ombudsmen, who are a key part of this whole set-up, and it has no policy responsibility for decision making and complaints handling of individual government departments, which is another crucial factor in administrative justice.

My next point is that the Council on Tribunals, now the Administrative Justice and Tribunals Council, is agreed to have played a major part over 50 years in improving a system of administrative justice that was bordering on a disgrace in the middle 1950s. There have been major improvements to which the council, under both titles, has contributed, not least the creation of the new Tribunals Service.

I am not sure which point this is—I have 10 in all. My next point is that the creation of the wider remit of the reformed Administrative Justice and Tribunals Council was fully supported less than four years ago by every group in this House, including the then Conservative opposition Front Bench and the then Liberal Democrat Front Bench. So to an extent this is going back to something that was committed to very shortly before the election. There was no manifesto commitment to its abolition and no mandate that can be claimed for its abolition.

My next point is that a key ingredient was the need for an independent voice for the interests and needs of the user of administrative justice systems. That cannot and would not be done by the Ministry of Justice—by people whose primary day-to-day accountability is to the Minister, not to the user or the stakeholder.

My next point is regarding the Parliamentary Ombudsman, whom people may like or not, but the Ombudsman’s comments on the proposed abolition in relation to the consultation document is worth a guinea per minute and quite short. I am not going to read it all out, but one paragraph of it says that her extensive contact with the Ministry of Justice in its various guises over many years gives her no confidence whatever in the ability of the Ministry to assume the functions of the AJTC. She goes on to say that however well-meaning and diligent individual officials may be, the Ministry simply lacks the institutional history, capability and technical knowledge to do that. I say hear, hear to that.

Then there is a devolution angle, which the Minister may not even have thought about. The Administrative Justice and Tribunals Council has a Scottish Committee and has always had one, based in Edinburgh. Since its reincarnation as the AJTC, it also has a Welsh Committee. Both these bodies are valued by the devolved Administrations. Nobody has made any decisions, but the Scottish Administration is looking at the possibility of creating a civil justice council, embracing the work of the Scottish Committee of the AJTC. Northern Ireland, which at present has nothing much at all in this field, is also looking at a model of that kind. From what I was told on Thursday, Wales, too, is looking at a council that would take on the work of the Welsh Committee. Would it not be ridiculous if, as a result of this, England—which started all this—became the only part of the United Kingdom without a body to provide what has been provided in England by the council and tribunals of the AJTC for more than 50 years in respect of oversight and a voice for administrative justice? I think it would be almost unbelievable.

Finally, not everybody will know—I hope the Minister does, certainly his departmental colleague, Mr Djanogly, does—that the Public Administration Select Committee in another place is conducting an inquiry into this abolition proposal. Having attended the hearing yesterday, I make the following points. First, the Ministry, according to the Minister in the other place, Mr Djanogly, as I heard him, intends to take in all the AJTC staff alongside building some modest increase in its own previously non-existent capability even to offer policy advice in this area. I must say that casts huge doubt on the savings figures we have been given, and it was clear yesterday that nobody knows what those figures are.

Secondly, it appears to be accepted by everyone that the MoJ cannot replace much of the work that the AJTC does, especially on the user front and in creating effective stakeholder relationships on a wide scale, as represented by the conference that the noble and learned Baroness, Lady Scotland, attended and spoke at with great distinction last week. I do not believe the MoJ can do that. I do not know what the report will say, of course, because it has not yet been written, but from what I heard yesterday, I think it is highly likely that the Public Administration Select Committee will say that the Government need to look again at this. If they do, that means that an important committee in another place will in effect be saying that another place itself needs the opportunity for further reflection on this proposal. I suggest that your Lordships should give it that opportunity and I intend, subject only to the miracle of the Minister saying something that I do not expect him to say, to seek the opinion of the House.

[Lord McNally]

My Lords, I had better intervene now so that I do not keep my noble friend Lord Newton in suspense for too long. Alas, as he knows, because we have discussed this on a number of occasions, I am not able to deliver the kind of assurances that I was able to deliver for the noble Lord, Lord Ramsbotham.

[Lord Hunt of Kings Heath]

My Lords, can the Minister clarify whether he is seeking to wind up the debate?

[Lord McNally]

No, I am not seeking to wind up the debate. I thought that it would be useful for me to say something now so that there would be something for the noble Lord to attack me on afterwards—and then I can attack him after that. No, I thought it would be useful at this stage to state where we are coming from because, as I say, I had a number of conversations with my noble friend Lord Newton. I had a meeting with him and my noble and learned friend Lord Howe and I took their concerns back to my colleagues.

However, I have to make it clear that the purpose of the Government today is to restate their intention to abolish the AJTC outright, using the powers in Clause 1. I also make it clear that the Government have no intention of merging the AJTC with the Civil Justice Council. There is no appetite within Government or the senior judiciary to add to the CJC to the Bill. I am pleased that following a Division in Committee, noble Lords agreed to the proposal to abolish the AJTC. I am conscious that what my noble friend Lord Newton has been trying to do—I still use the term noble friend, as I hope he will—is to give the Government some wriggle room on this matter. Sadly, as I have just explained, the Government do not want wriggle room on this matter but to abolish the AJTC.

The Government’s rationale for abolition has been made in both Houses and on a number of occasions. The Government are committed to this reform because the AJTC is an advisory body whose functions are either no longer required or, in the case of its policy functions, are more properly performed by the Government themselves. The abolition of the AJTC will have no direct impact on judicial independence or—

[Lord Borrie]

My Lords, an intervention by the Minister may well have been useful but he is using every sentence he now utters in opposition to any move of any kind. Does that mean that there is no point in any of us intervening further in this debate after he sits down?

--- Later in debate ---

[Lord McNally]

Absolutely not. I have heard Ministers make such speeches in this House but I will take advice from the Clerks. I am very willing to sit down and to listen to all the debate but the idea was to make it clear where we were coming from. As is shown by the Marshalled List, the Government do not intend to accept any of the amendments tabled by my noble friend Lord Newton. That is abundantly clear. Whether the noble Lord wants to hear that at the end of the debate or now is a matter of choice but I will look to the Clerk for guidance.

I understand that if I want to speak early for the assistance of the House, it is fine. I hope that the noble Lord, Lord Borrie, will accept that and that we can go on. I do not see where it disrupts the debate and I look forward to his contribution, as I always do.

As I say, the abolition of the AJTC will have no direct impact on judicial independence or judicial decision-making. I want to make it clear that the AJTC is not a tribunal or any other form of judicial body. While it has observing rights, it is not an inspectorate and does not have the range of monitoring and reporting powers that an inspectorate would expect to have. The AJTC was set up to advise the Lord Chancellor, Ministers of the devolved Administrations in Scotland and Wales and the Senior President of Tribunals on administrative justice. One of the council’s functions is to keep under review the constitution and working of tribunals. However, we have moved on from a structure in which tribunals were funded by the department whose decisions they reviewed. We now have the unified Her Majesty’s Courts and Tribunals Service supporting the majority of central government tribunals and ensuring that tribunal users have access to timely and effective justice. Previously disparate management, procedures, appeals and funding mechanisms are now administered centrally by the Ministry of Justice. There are also a number of ways by which ministerial accountability is assured for the performance of Her Majesty’s Courts and Tribunals Service, further reducing the need for the kind of oversight that the AJTC provides.

The Ministry of Justice is committed to maintaining and developing its overview of the end-to-end administrative justice system. It is working with other departments and the devolved Administrations in Scotland and Wales to ensure that there continues to be a UK-wide overview of administrative justice. It also has close links with the Cabinet Office, which leads on ombudsman policy.

Much is made of the AJTC’s ability to offer independent advice and I understand the principle; it is an important one. However, independence must be weighed against the effectiveness of such bodies if being so far removed from the centre means that they lack the ability to influence and drive change. I urge this House to view the Government’s proposals for administrative justice policy in this light.

It is my belief that officials are well placed to provide Ministers with objective, expert and impartial policy advice on administrative justice matters. That is what officials do in every other justice policy area. Officials have forged links with stakeholders in the administrative justice field that will enhance their role and capability. Indeed, the department intends to establish a group of administrative justice experts and key stakeholders, particularly those who represent the views of users. In practice, that will likely include those who practise or have practised in relevant fields. Such a group will provide a valuable forum for sharing information and best practice and will be used to test policy ideas and, initially, to help prioritise the administrative justice work programme.

[Lord Maclennan of Rogart]

In the light of the concerns that have been forcefully expressed on a number of occasions in this House, will my noble friend consider whether the new arrangements could be made rather more transparent than has been the case in respect of some ministries in revealing what the consequences of these inquiries are? Perhaps an annual report could be produced for a number of years so that we can judge how effective the proposed changes are in the event.

[Lord McNally]

I am happy to take that suggestion back. It sounds a reasonable idea although I do not know what the cost would be. All I can promise my noble friend is that I will take it back and let him know, via a letter that I can put in the Library of the House, what the reaction is to that. The AJTC’s budget for the 2010-11 financial year was £1.3 million, compared with the Civil Justice Council’s budget of a relatively modest £312,000. That reflects the fact that AJTC members are paid while CJC members are not.

So it is for reasons of efficiency, economy and effectiveness that the Government are not seeking to modify any of these proposals. There is no other public body that could easily take on the functions of the CJC, which is why we retain it. However, I insist that the reasons for abolishing the AJTC are as sound now as they were when this House took that decision some months ago. Although I am grateful to my noble friend Lord Newton for offering us the wriggle room, it is not wriggle room that the Lord Chancellor wishes to take advantage of. He wishes for this House to confirm the decision that it initially took and proceed as soon as possible with the abolition of the AJTC. I hope that is of help to noble Lords in the contributions that they want to make to this debate.

[Lord Woolf]

My Lords, I wonder if I might add my support to each of the points made by my friend, the noble Lord, Lord Newton. With the greatest respect, the Government have misunderstood why his latest proposal would be very positive indeed. The approach that has been developed over the period for which I have been concerned with administrative law in different capacities is to see that access to and the administration of justice are both significantly influenced by what happens in tribunals. Therefore, there has been a policy of ensuring that there is no geological gap between what the tribunals and other bodies of that sort, including the ombudsmen, do and what the courts do.

At various levels and in various parts of the administrative justice system to which the noble Lord, Lord Newton, and the Minister referred, there are now judges in place who play a leading role either directly or indirectly. They play it indirectly through the increasing incidence of direct appeals to the Court of Appeal from certain bodies and, where that is not possible, through judicial review. It is important to the rule of law that these bodies should be doing what is required of them.

What we have found is that both the criminal and civil courts need a council of the sort that the Civil Justice Council provides—one that brings together those who have personal and direct experience of the sharp end of running these bodies as chairmen, deputy chairmen or in some other such capacity, and very experienced practitioners. They should provide a brains trust, which could feed back from these bodies into the justice system as a whole. They can then perform their immediate responsibilities of improving the criminal or civil law, taking into account the position of these other bodies, and of improving the quality of what happens in the bodies to which I have referred,

The Minister made a case that all this could be done by the Ministry of Justice. No one has greater affection or admiration for the Ministry of Justice than I have, but I have to admit that there are certain fields in which practitioners have a greater insight than the ministry has. In the field of criminal justice, which is very important, and in the field of civil justice generally, which is equally important, it is now accepted that there should be a council, in addition to what the ministry can provide, to provide this extra insight into the subject. It is no answer to say that this insight can be achieved by the Ministry of Justice because such a body would supplement the ministry’s task and shine a light on this important area of providing justice that would otherwise not be available.

There has been a great improvement in the Bill—thanks to the debates on it—regarding the ability of the Ministry of Justice to listen. Having listened in turn to what the Minister had to say, I would to say to him, with the greatest deference and respect, that although there has been listening there has been no understanding of the nature of the body being put forward by the noble Lord, Lord Newton. For the reasons that he gave, I urge caution before deciding that this body should receive the chop. It should not be a sacrificial lamb.

--- Later in debate ---

I am very much persuaded that the council has done work of inestimable value over the past 50 years. I pleaded with the noble Lord, Lord McNally, to reflect on comments that were made today and in the past few months. The noble Lord, Lord Newton, does not seek to revisit the debate and the decision of the House. He seeks to give a little flexibility to the Government to reflect and to await the results of the inquiry by the Public Administration Committee that is taking place. Even at this late hour, I urge the noble Lord to take up the offer from his noble friend. It is a very handsome offer, it would get the Government off the hook and it would enhance administrative justice in this country.

[Lord McNally]

My Lords, when one gets advice from people ranging from Confucius to the noble and learned Lord, Lord Woolf, it is necessary to take a pause. However, I would like to House to return to the first principles of the Public Bodies Bill. The intention was to look at a range of bodies that had grown up to perform various functions. The philosophy behind it is one that I support. Over the past 20 to 30 years, Governments have got into the habit of passing the buck. When in doubt, one should set up an advisory body, an inquiry or a tsar—anything to prevent a Minister having to stand at the Dispatch Box and take responsibility for something that has been done. It is partly against that trend that the Public Bodies Bill set off on its journey some months ago.

Although it is always very tempting to take up the kind of options offered by my noble friend Lord Newton, as I said in my helpful opening guidance remarks the Lord Chancellor and the other place have listened. Both Houses came to a firm conclusion on abolition and therefore I am not tempted to go down the side road offered by my noble friend, however attractive it might be. We have mentioned the public expenditure aspect of this. Whenever one addresses problems, there is a tendency to say, “It is only £1.3 million”. However, that is more expenditure. Perhaps I may humbly say that you always know when a lawyer is insulting you because they are very polite about it.

[Lord Hunt of Kings Heath]

I wish no disrespect to the noble Lord. I have just two comments. First, I wish he had taken part in our debates on the Health and Social Care Bill. His noble friend Lord Howe is busily seeking to hand over all responsibility for the NHS to the biggest quango there will ever be. Secondly, on the question of cost, will he reflect on the evidence that the council gives about poor decision-making, poor communication and delay because of overly complex or incomprehensible rules? Surely, the impact of the council is to help the Government to reduce expenditure. Does he think that his department will be publishing advice like that on the performance of itself and other government departments?

[Lord McNally]

Indeed. One of the thrusts of our argument is that the sooner the Government get back into the habit of taking responsibility for their own inefficiencies, the better. My department and HMCTS are already working closely with DWP on a range of initiatives to improve initial decision-making. It is about time that government departments took responsibility and I concede a whole range of areas where initial decision-making is poor and causes expense. But that is not a reason to pass the buck to some other body. The job is for government to get on with improving the efficiencies.

The Ministry of Justice is well placed to ensure that administrative justice is a key part of the wider justice reform agenda. We are committed to developing a strategic UK-wide approach. We are also committed to ensuring that the right decisions are made the first time. When disputes arise we will provide proportionate, timely and cost-effective solutions and drive ongoing improvements in the system. The MoJ already has strong links with the devolved Governments and other government departments and is already demonstrating the benefits of this. The department is currently considering priority areas and the resources needed to take them forward. At present there is a core team consisting of staff of a range of grades which has access to the wider justice policy group. The team can freely call on legal and analytical experts.

Other issues were raised. Any idea of a merger with the CJC has been ruled out by the judiciary. I mentioned in my initial intervention that we would establish a group of administrative justice experts and key stakeholders to draw on their views. As for the Public Accounts Committee inquiry, my honourable friend Jonathan Djanogly gave evidence yesterday. We will certainly take note of any recommendations that the committee makes. However, I do not think that it will remove the central piece of our analysis, which is that the AJTC is an advisory body that is no longer required in the field of administrative justice. Robust governance and oversight arrangements are now in place with regard to tribunals and the development of administrative justice policy is properly a function of government. A source of advice that is independent of government is not a prerequisite. Civil servants in the MoJ already offer Ministers balanced, objective, impartial advice, and they can draw on expert advice on administrative justice reform.

The Government will ensure that they exercise effective oversight of the administrative justice system in a way that best serves its users. They will develop, maintain and enhance a UK perspective of the system as well as enhancing their links with stakeholders. The Government will expand the channels by which best practice can be shared and collaborative working developed across the administrative justice system.

I have been asked to think again but I say to the House that we have had ample time to think about this. This House has already made one decision on this body. The amendments of my noble friend Lord Newton may be either helpful or ingenious, whichever way one likes to approach them. However, at this stage of a Bill, when the other place has had ample time and ample consideration of these matters, the Government are entitled to say to this advisory House that we have listened to this advice but that we want to abolish this body.

[Lord Newton of Braintree]

My Lords, I started off slightly plaintive and have ended up more than slightly depressed. I can assure the Minister that I do not wish to become personal non-chums with him. Actually, I rather sympathise with him having to trot out all this stuff for the third or fourth time. He said he thought that the arguments were as sound now as they were at the beginning. From my point of view, they are as weak now as they were at the beginning.

I will make very few points as there is no point in going over all the ground again. I am hugely grateful to those who have spoken in my support. Rather unusually for this kind of debate, they have not only supported me and repeated some of the things that I have said, but all of them have added something significant to the arguments in the debate. I will not pick noble Lords out except for the noble and learned Lord, Lord Woolf, because the Minister said that the judiciary rules out any idea of this being combined in some way—the noble Lord used the word “merging”—with the work of the Civil Justice Council. At least in historical terms, you cannot get much more senior than the noble and learned Lord Woolf. I also have from three separate sources a report that the Master of the Rolls, the noble and learned Lord, Lord Neuberger, who is also pretty senior, said at the AJTC conference last week that he could easily envisage an administrative justice committee of the Civil Justice Council and he seemed to think that it would be a good thing if the set-up were right. I see the noble and learned Lord the former Lord Chief Justice nodding. I do not think that it is right to say that members of the senior judiciary have set their faces against this. It seems to me that that is not the case. I believe that efficiency, economy and effectiveness have been covered with the figures that I gave and that have been given by others.

I must make the point that remarks about Ministers taking responsibility for decisions are completely irrelevant. This is not a decision-making body. This is an advisory body. The Minister said that the department would need to assemble some kind of stakeholder group. I do not recall his exact words. He put the emphasis on practitioners. That means reinventing the AJTC, in one way or another, when it already broadly carries out this function and more, because it links with users, not just stakeholders, judges and advocates. This ties in with the fact, as I learnt on Thursday last, that the tribunal service, which in my time asked the AJTC to run two of its user groups because it was thought that we did it better, has now scrapped all its user groups on the grounds that it cannot afford them. Where does that leave this argument?

There is very little else that I want to say. I do not think that the case stands up. I do not think that the Minister’s arguments stand up. I think that we need a body like this. I wish to seek the opinion of the House.

--- Later in debate ---

Moved by

[Lord McNally]

That the House do agree with the Commons in their Amendment 50.

[The Deputy Speaker (Lord Faulkner of Worcester)]

My Lords, I should point out that there is a misprint in Amendment 50A, and that the words, “and insert ‘disagree’”, should appear at the end.

Amendment 50A (to the Motion on Amendment 50)

--- Later in debate ---

[Lord Bach]

My Lords, it does not seem like a year since this House decisively rejected the Government’s firm plan to abolish the position of chief coroner by a majority of 112. It was a vote in all parts of the Chamber of which the House could be proud then and can be even prouder today. Of course I join in congratulating the Government. However, in this instance the congratulations must be slightly modified. The Government have given in at the 59th minute of the 11th hour. They deserve credit, but as the noble Lord, Lord McNally, will recognise from his position at the Ministry of Justice, there is an analogy with someone in the dock who does not deserve the credit that someone who makes an early admission of guilt deserves. This is the equivalent of a change of plea at the moment when the jury is being sworn in. It is worthy of credit, and the judge will pass a lesser sentence, but he will not show as much leniency as if the Government had given way some time earlier. It is better late than never—but it is pretty late.

Of course, this is all immensely to the credit of the noble Baroness, Lady Finlay. She deserves huge congratulations on her success today. She will be the first to say that it is not just her success, but that of others as well. However, she deserves particular praise for her brave refusal to back down over this long period. So does the Royal British Legion—I declare my membership of a local branch—and other organisations that the noble Baroness mentioned such as INQUEST and Liberty, and those on all sides of the House and elsewhere who stayed firm and argued the case for the chief coroner.

Noble Lords should make no mistake—sometimes these things ought to be said—that the Government over the past 12 months used every means and blandishment, and a few extra, to persuade, if I may put it gently, those who dared stand out of the error of their ways. Individual meetings with the Lord Chancellor were not the worst of it. Seductive compromises were offered one day and a hard line taken the next. There were meetings and letters galore. I hate even to contemplate the pressure that the brave Conservative Member Andrew Percy, who dared to challenge the Government in another place, must have come under at a certain stage. I do not want to sound churlish—I hope that that is not my style—but I do not think the congratulations are quite as deserved in this case as perhaps they were earlier this afternoon.

I have no doubt that our Justice Minister, the noble Lord, Lord McNally, played an important role in this. I also am in no doubt that the Sun, which I know many noble Lords read regularly, also played a pretty important role at the last moment. For anyone who has forgotten what they read in the Sun yesterday: they will have seen a story and then an editorial that condemned the Government in no uncertain terms for the stance that they were then taking. No. 10 reacted extraordinarily quickly. The Prime Minister’s spokesman spoke early yesterday afternoon and the change was announced yesterday evening—perhaps coincidence; probably not.

Whatever the result, the Government have done the right thing. They have accepted the chief coroner. That was argued for on all sides of this House during the passing of the Act, which was only two years ago. It is a great pleasure to be able to congratulate the Government on what they have done, but I ask the Minister who will answer this debate why Section 40 on appeals is being removed. If I remember rightly, many noble Lords took part in those debates, so why is it being removed? Among the strong and powerful arguments in report after report in the past decade, and eventually during the debate on the Coroners and Justice Act 2009 for the setting up of this post of chief coroner, the possibility of appeal on a number of issues, which is not huge, was set out in Section 40(2), as it was well nigh impossible to appeal under the present system. The only remedy, as we have heard, is judicial review, which is time consuming. As the Public Law Project argued:

“The cost of bringing a judicial review claim is considerable: in the region of £10,000 to £20,000 for a straightforward case, higher for a more complex matter. If a claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders”.

We believe that it would be preferable for the chief coroner to have the power that Parliament gave him or her during the passage of that Bill, which was agreed on an all-party basis. That sensible step which we all agreed should not be implemented straight away—that is perhaps the answer to the noble Lord, Lord Phillips of Sudbury—and that there should be a delay between the time the Bill was enacted and this section was implemented. There was no intention from any party that the appeals process would begin at once. If it remained in the Act it would be there if some time in the future a Lord Chancellor felt able to bring it in under the guidance of the chief coroner at the time. To abolish Section 40, which is what the Government propose, is the wrong thing to do.

If the noble Baroness were to put the matter to a vote—I can understand if she does not wish to do so—we on this side would support her. We regret that Section 40 is being taken out. However, I do not want to end on a depressing note. We are grateful to the Government for the action that they have taken.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Bach, for that non-churlish response. He must have been thinking of some earlier Administration when he talked about the main drive of government policy being an attempt to please the Sun.

This has been a very useful debate and I hope that I can give some reassurances. I cannot give reassurances on the question of appeals. As my right honourable friend the Lord Chancellor said in his letter, to extend,

“the appeals system was by far the most expensive element of the original Chief Coroner role proposal”.

The noble Lord, Lord Bach, as with most of the proposals, including that in the Division we had today, is rather cavalier about costs. I am afraid that the Government cannot be. I also think that enough doubts about the idea of appeals were expressed in the responses to make it prudent not to proceed with that at the moment. We have all been in politics long enough to know that simply to leave the appeals system hanging there would almost certainly invite the next campaign on this issue to commence straight away.

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Moved by

[Lord McNally]

That the House do agree with the Commons in their Amendment 54.

54: Page 21, line 23, leave out “Civil Justice Council.”

--- Later in debate ---

Moved by

[Lord McNally]

That the House do agree with the Commons in their Amendment 56.

[Lord McNally]

My Lords, this amendment concerns a technical matter which has to go on to the record. It should have been moved in an earlier grouping. It refers to Her Majesty’s Stationery Office. I made my maiden speech in this House on the privatisation of Her Majesty’s Stationery Office. On Report in March, your Lordships’ House passed government amendments that inserted the Advisory Council on Public Records, the Keeper of Public Records and the Public Record Office into Schedule 5 to the Bill. The intention was and is simply to put the administrative entity of the National Archives and one of its advisory bodies on a statutory footing, thereby strengthening its ability to perform an important cultural function. This further amendment, to insert Her Majesty’s Stationery Office into the same schedule, serves a similar purpose and therefore represents a minor technical amendment rather than a substantive policy change. It is supported by the chief executive of the National Archives, who is also Keeper of Public Records, and has been agreed with Buckingham Palace.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Monday 21st November 2011 Lords Chamber

Moved By

[Lord McNally]

That the Bill be read a second time.

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

My Lords, this is a substantial and far-reaching Bill. Its breadth is a consequence of the scale of its ambition, which is nothing less than intelligent, radical reform of the justice system. It aims to reform our criminal justice system so that it protects and serves the needs of the law-abiding, especially victims. It recognises that, for many offenders, prison does work and clear, stiff punishments are the right response to serious crime. But it also seeks to meet the challenge of persistent offending by bringing on stream a rehabilitation revolution which, if successful, would be a win-win, saving future victims from the trauma of a crime and the taxpayer the cost of incarcerating the offender once again, at the same time introducing to society a productive citizen whose life is not wasted in the cycle of criminality.

The Bill’s second goal is the long-overdue renewal of our system of civil justice. A modern system should resolve conflict as early as possible in the most cost-effective way. Yet the reality is that many ordinary users find going to law a slow, expensive and daunting experience that fosters rather than minimises litigation, often at the taxpayer’s expense.

The Bill therefore seeks to remove certain areas from the scope of legal aid while encouraging a step-change in the use of mediation and other ways of resolving disputes. It also implements the recommendations of Lord Justice Jackson on reforming no-win no-fee funding arrangements, which have become dysfunctional and inflationary. We also propose to ban referral fees.

Underpinning these first two aims is our third intention; namely, to make a contribution to unavoidable and necessary reductions in public spending. We approach our task with a profound belief in the fundamental importance of access to justice but the system as it stands faces an unignorable problem of affordability. Therefore, Part 1 introduces major reforms to the scope of civil legal aid. Alongside this, the changes in Part 1 mean a fundamental shift in the way the legal aid and wider civil justice system works.

For those who say that those most in need must have legal help to support them when they have a serious legal problem, I agree. For those who say that people must have legal help for whatever they want, whenever they want, I cannot agree. Access to justice is not the same as state-funded access to legal representation at court. We must do more to encourage people to use alternative, less adversarial means of resolving their problems.

We have approached our reforms of legal aid from first principles and have taken into account the relative importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding as well as alternative sources of help and advice. Our proposals seek to focus legal-aid funding on circumstances where a person’s life or liberty is at stake, where they are at risk of serious physical harm, or where they face immediate loss of their home. Importantly, we are also retaining civil legal aid in cases where children may be taken into care.

The net effect of all this is significant change. Yet, in all, we estimate that the taxpayer will still spend the best part of £1.7 billion on legal aid each year after these reforms have been carried through. Prioritising critical areas of spend necessarily means taking a more radical approach elsewhere. That is why, for example, we have decided to remove taxpayer funding for legal representation in private family law cases and, instead, increase spending on mediation. Similarly, in areas such as employment, routine immigration applications and welfare benefits issues, legal aid will no longer be available. As noble Lords well know, the original rationale of the tribunals system was precisely to enable people to make their case without the intervention of a lawyer.

Although narrowing the scope of legal aid, we intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for an excluded case where failure to do so would amount to a breach of a person’s right to legal aid under the Human Rights Act or European Union law. We also intend to address worries about the future of the valuable work done by the not-for-profit sector. This is an important part of our alternative and we recognise the need for a strong sustainable body of advice providers.

The Government have already announced a £100 million transition fund for the not-for-profit sector. I can confirm that, as announced this morning, we are injecting an extra £20 million specifically for free advice services, as well as undertaking a cross-government review to ensure that people continue to have access to good quality free advice services in their communities.

Concerns have also been raised about the impact of Part 1 on children and women. Let us be clear from the outset: we have retained legal aid for child protection cases, civil cases concerning child abuse and those involving special educational needs. We have also made special provision to retain legal aid for child parties in family cases. The consequence is that the vast majority of support for children will be unaffected by our changes. In 2009-10, the Government provided £133 million in civil legal-aid funding to child parties in all categories of law. Under our proposals, 95 per cent of that will continue.

In relation to women’s access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence, where we have broadened the range of evidence accepted. Applications for protective injunctions and associated advice will continue to be funded.

In addition, in private family cases, Part 2 extends the courts’ powers to require one party to pay towards the other’s costs. This will help significantly in cases in which there is an inequality of arms. In family law as a whole, the taxpayer will still be providing over £400 million, much of which will benefit women.

Of course, the dire economic situation that we inherited drives some of the tough choices that we have had to make. Indeed, noble Lords opposite were already trying to cut legal aid at a time when they were still telling us that they had cured boom and bust. We all agree that legal help for those facing serious legal difficulties is fundamental. On the other hand, substantial changes and reform are much needed. We believe that our proposals in Part 1 achieve this balance.

Part 2 implements reforms in civil litigation funding and costs, based on Lord Justice Jackson’s recommendations. No-win no-fee conditional fee agreements were first introduced in England and Wales by my noble and learned friend Lord Mackay of Clashfern. Most observers believe that they succeeded in their goal of improving access to justice for those who were neither poor enough to qualify for legal aid nor wealthy enough to afford the costs of privately funded litigation. However, later changes tilted the balance much too far in favour of claimants. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, said to the Times only last week:

“When you see the level of costs in some cases … it is clear that the system is unsatisfactory, some would say worse than unsatisfactory, and something needs to be done about it”.

This Bill intends to do something about it by ending the recoverability from losing parties of success fees and insurance premiums that drive up legal costs. This will be balanced against a 10 per cent increase in general damages for claimants. By taking these steps, we will restore common sense to the system and stop the perverse situation in which fear of excessive costs often forces defendants to settle, even when they know that they are in the right. This marks a return to the kind of arrangement that prevailed when the system was first set up by my noble and learned friend Lord Mackay in the mid-1990s.

I am well aware that a number of noble Lords, many of whom are sympathetic to the broad thrust of the Jackson reforms, have concerns about how this will impact on certain areas of litigation. I will listen to what they have to say both during today’s debate and when we return to those matters in Committee.

I turn now to the third and final part of the Bill, which concerns our sentencing proposals. I want to start by making the point that these reforms are designed with the victims of crime very much in mind. As I have said already, for many, prison is necessary and it works. However, if it is truly to protect the public, it needs to do a much better job on tackling reoffending.

We have two key proposals to deliver this change. The first is to introduce reforms across the estate to make our prisons places of hard work, not idleness. Getting prisoners into the habit of work matters in its own right not only because unemployment is a major risk factor in reoffending, but because once you get offenders working, you can institute a much more effective system of reparation to victims and to communities. Accordingly, this Bill enables deductions to prisoners’ earnings to pay for victims’ services and puts a positive duty on the courts to consider handing down compensation orders, the proceeds of which can go direct to victims. These reforms will help to move prisoners from being a purely negative drain on the system to making a positive contribution and pay genuine reparation to the victims who their actions have affected so terribly.

Running parallel to the Bill, our second key proposal is paying by results those organisations which work to rehabilitate offenders. This is a truly radical reform with the potential to revolutionise the way a lot of rehabilitation services operate. Rehabilitation is the key theme that runs right through the Government’s sentencing proposals. One need only look at this summer’s riots, where around three-quarters of suspects had previous convictions, to see that existing punishments have so far failed to reform. I believe that we need punishment which is robust and proportionate but that is also accompanied by a determination to get offenders to face up to the causes of their crime. We are offering those who commit crimes a choice. For those who do wrong, you will be punished, but for those who choose to mend their ways, we are extending a helping hand. That helping hand includes freeing up courts to impose drug, alcohol or mental health treatment requirement programmes which are tailored to individual needs.

I can also announce today that the Government intend to introduce reforms to the Rehabilitation of Offenders Act 1974, the outdated operation of which inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the need to protect the public while removing unnecessary barriers that prevent reformed offenders contributing to society. I pay tribute to my noble friend Lord Dholakia on his long campaign on this matter. We believe that punishment must be proportionate, flexible and productive, so let me turn to some of the key measures in the Bill which will ensure that.

The first of the measures is greater discretion. We are legislating to provide more flexibility for judges and magistrates to sentence appropriately. The Bill is a first step to unpicking the labyrinth of legislation governing sentencing and creating a single framework for the release and recall of offenders. We are also proposing a simpler, clearer duty on the court to explain the sentence it passes, enabling it to be understood better. The Bill also introduces greater flexibility and discretion by removing the so-called “escalator principle” of out-of-court disposals for under-18s, which forces young people arbitrarily into the criminal justice system, regardless of the nature of their offending. In this area of youth justice reform, we are also undertaking the important step of treating 17 year-olds as children for remand purposes, and giving “looked-after child” status to all young people aged under 18 who are securely remanded. This will enable, for the first time, care plans to be created for those young people who are remanded to youth detention accommodation.

In the wider system, we seek to take a tougher approach to waste and reduce unnecessary pressures. Our major reform here is our proposals on remand in Chapter 2 of Part 3. These focus the use of remand in custody on those who are likely to receive a custodial sentence if convicted, with an exception in domestic violence cases. While I recognise that this change will be unwelcome to some, continuing to remand into custody people who in reality have no prospect of being sent to prison if convicted is simply a wasteful use of expensive prison places. On the other hand, if you have committed a serious crime, you can expect a serious punishment, so Part 3 introduces a number of new criminal offences which ensure that the public have confidence in the system. These include: criminalising squatting in a residential building; minimum sentences for those aged 16 and over who use a knife or offensive weapon to threaten another person and cause an immediate risk of serious physical harm to that other person; and a maximum penalty of five years’ imprisonment for causing serious injury by dangerous driving.

[Lord Reid of Cardowan]

Before we leave sentencing I would like to ask the Minister a question about indeterminate sentences, which he has not mentioned. In doing so, I declare my interests, as registered. The Minister may know that some years ago when I was Home Secretary, I gently reminded the judiciary of the premise behind the sentencing guidelines that people should not be sent to prison for offences that did not merit it but should be given community services, whereas people who were a serious danger to society should be retained indefinitely for protection, not for punishment. Could he say something about that relationship, in particular indeterminate sentences, before he moves on?

[Lord McNally]

Patience, my Lords. I will be turning to IPPs.

On knife crime, in particular, I understand the arguments of those requests and the desirability of minimum sentences. We have not taken this decision lightly but only after careful consideration. The stark reality is that too many people are affected by this scourge and more often than not those targeted will be other children, whom we have a duty to protect. This offence will bite where this becomes most serious, where the knife is brandished and there is an immediate risk of serious physical harm to another person. I can say with some feeling that every parent of teenage children knows the worry that an innocent night out might end in an act of violence against their child, and I make no apology for acting to send the clearest possible message that this is unacceptable.

I now wish to turn to one of the Bill’s most important reforming measures, namely reform of the current system of indeterminate sentences for public protection. IPPs are poorly understood by the public. They lead to inconsistent sentences for similar crimes. They deny victims clarity about the length of time an offender will serve. The previous Government estimated that there would be around 900 such prisoners in jail. There are now 6,500 and more than half of those are beyond their tariff. As of the end of June 2011, only 320 had been released.

IPPs clearly need major reform. We will replace the IPP with the new extended determinate sentence. Instead of serious violent and sexual criminals being released automatically halfway through their sentence, those receiving the new extended determinate sentence will have to serve at least two-thirds before they can be considered for release, and the more serious offenders will not be released at that point unless the Parole Board considers it safe to do so. Under our plans we expect that more dangerous offenders who commit a second serious crime will receive a mandatory life sentence. We believe this is a balanced reform, one where victims will have a clearer understanding of how long offenders will spend in prison and will be kept informed of progress and release plans. It is an attempt to deal with the real problem without compromising the public safety or ignoring legitimate concerns about serious offenders.

I am well aware, given the range of expertise in this House, that the sentencing reforms that I have outlined will be subject to scrutiny and debate, both today and in Committee. So, too, will our proposals on legal aid, on the Jackson reforms and the rehabilitation revolution. This is as it should be for this is a revisory and an advisory House of great wisdom and expertise, and I will listen. But we remain clear about the need to make hard choices and fundamental reforms in our justice system. If we get this right, the prize is a justice system that contributes to a safer and fairer society by tackling reoffending and by putting the victim at the heart of everything we do. Moreover, it will be a system that protects access to justice where it counts while keeping costs under control and ensuring the system has less waste and less delay. Our aim has always been to propose a balanced package and I can tell the House that that remains exactly what this is. This is a radical and reforming Bill and I commend it to the House. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, I hope that the House will understand that in a debate of 54 contributions, I am not going to be able to answer them all in detail this evening. Indeed, many of the questions will be better raised at Committee, with specific details of the Bill.

The noble Lord, Lord Rix, and the noble Baroness, Lady Massey, asked whether I would meet them on the specific issues they raised. Of course I would be delighted to do so. If they will contact me I shall fix something up. The noble Baroness, Lady Whitaker, asked whether the letter from Professor Ruggie could be put in the Library of the House. I will certainly arrange that. It is already on the internet. It might be interesting to the House to know that Professor Ruggie is no longer the UN special representative for business and human rights; he has joined a Boston law firm. Whether that is promotion, I do not know, but that is the fact.

The noble Lord, Lord Faulkner, came with his proposal about amendments to deal with metal theft and the dangers it poses. I cannot give him a definitive answer at the moment, other than that there is an inter-ministerial group looking at this issue as a matter of priority, and we will look at any proposals appropriate to the Bill. I have lost sight of him again—oh my God! Thank God we did not give the Speaker more powers; he would have named me by now.

It has been a very interesting and well-informed debate. Let me take to start—because he was quoted—my colleague from the other place, Mr Ward, who said that we must not let deficit reduction dominate everything that we do. Of course, unless we address the issue of deficit reduction, many of the things that we subsequently do—

[Lord Bach]

The noble Lord is quoting Mr Ward wrongly. Mr Ward said:

“It is a very dangerous thing if we are going to use deficit reduction as a justification for almost anything that we might do”.—[Official Report, Commons, 2/11/11; col. 976.]

[Lord McNally]

I stand by that quote, then. If we are going to take that attitude, and if we are going to avoid taking tough decisions, we will face far greater economic problems. This idea that somehow we can put things off until tomorrow is perhaps why we are where we are today, and why we have to take the decisions that we will take today.

I heard closely what the noble Lord, Lord Howarth, was saying. Of course, it was a wonderful speech. A number of the speeches made today were wonderful speeches, if we believe that there is no limit to the amount of money that we can spend on legal aid; that there was somehow a golden age when this was all available. However, we know well—

[Lord Howarth of Newport]

The difficulty in the position that the Minister is taking is that while he may indeed reduce the Ministry of Justice’s expenditure, he is exporting his cost to other government departments and to local government. Far from reducing the deficit in public finances, the policies of his department are likely to increase it.

[Lord McNally]

That is the speech the noble Lord made earlier. He knows, as I well know, that across government, except for two special cases—health and overseas aid—departments have had to make severe cuts. In each of those departments, there are people who could make speeches, like those that have been made today, about how those cuts hurt specific sections of society. But there is no getting away from it: the Ministry of Justice is a department with a budget of just over £9 billion. Its commitment was to cuts of £2 billion in a department that spends on only four things—prisons, probation, legal aid and staff and court administration. Each of those has taken a hit. If noble Lords are successful in stopping the changes we have made in legal aid, those other parts will take a hit as well. I can tell noble Lords that it may be heartbreaking to hear some of the stories today, but for me, it has been heartbreaking to see very good staff who have served the Ministry of Justice well having to leave through no fault of their own. We have a probation service, which does exceptionally good work, that is under pressure. There are no soft options and no easy ways in this. We have tried to put forward a series of suggestions.

Listening to some of the distinguished lawyers, they do not fully appreciate that their profession is in flux. The way law is delivered and by whom it is delivered is going to change. I do not think the full impact of alternative business structures and changes in the way chambers and solicitors are organised is fully appreciated yet. They will mean changes, and they may be changes that make a big difference to the way that legal advice is delivered. I heard the disparaging of telephone advice, but the world is changing and lots of people receive advice on the net and by telephone. Indeed, I went to the Law Society’s prize giving for solicitor firms of the year and I was intrigued by how many of the prize winners now have web pages where people can go. You can get lots of advice for free before you press the button to hire them. It is a changing world in some of these things.

I understand that when campaigning groups are campaigning they always produce figures that will be brandished around in debates like this. For example, I point out that none of the horrendous cuts that we are being told about actually yet impacts on CABs. I hold up my hand on the £20 million. I thought of saying that when I was doing economics there was something about the velocity of money, and I think this is an example of it. I do not know whether it has been around 14 times, but it is, I confess, the same £20 million that was advised earlier, but it is a very useful addition. We are across the department looking at this very special problem of advice centres and the CAB to see whether we can bring forward proposals longer term.

I go back again to this idea that somehow we are moving from a principle in terms of legal aid. It invites the question: what is so magic about £2.2 billion or £2.1 billion against £1.7 billion? It is less, and it means cuts, but it is not a move away from some absolute commitment to pay for everything, whatever, which seemed to be the thrust of some of the speeches earlier. Once you have a budget, you make choices within that budget, and that is what we are doing. These reforms will still be spending £1.7 billion a year on child protection proceedings, most judicial reviews, international child abduction, special educational needs, community care, discrimination, debt and housing cases where a home is at immediate risk, mental health cases and 95 per cent of funding for child parties.

I accept that a number of issues have been raised today that need the kind of scrutiny and expertise that this House brings. The Government have not sprung these issues on an unsuspecting country. The proposals on legal aid were in the Green Paper that was published over a year ago. Certainly, some of the more recent additions will need the close scrutiny of this House, but it is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully, and we are looking very closely into the one for more efficient prosecution and reimbursement of legal aid funds. A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.

I also take on board the very strong concerns that were voiced about domestic violence. I believe that we have tried not just with these measures but with other government measures to try to give support and help in this area. We should go through this in Committee and I will be able to respond to amendments that are put down at that stage. The same is true of clinical negligence. These issues have been raised with considerable passion and they merit closer scrutiny in Committee.

Those who are experienced as Ministers will know that I cannot make any commitments at this stage, other than to suggest, as I did earlier, that we use Committee for a useful and productive examination of the Bill. I take on board what a couple of my noble friends said about advice at police stations. I suggest that they put down an amendment on that. The noble Baroness, Lady Grey-Thompson, suggested that we had not listened to earlier consultation. That is not true. I will not weary the House by going through them but there are at least a dozen examples of specific changes we have made during the consultation process. I take the advice of the noble Lord, Lord Gold, that the best way I can end this debate is the way I ended my opening speech; that is, to recognise that the range of expertise in this House will be extremely useful to us when examining this in Committee.

This may excite noble Lords or send them into depression, but we have something like three months of parliamentary time looking at this Bill in its various stages. I cannot go further on these issues than saying that we will listen, but we will listen to some very serious points that were made in a very serious way. I hope on that basis we can move to Committee and that the House will give this Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.