Community Legal Service (Funding) (Amendment No. 2) Order 2011
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Lord Martin of Springburn
My Lords, I have enjoyed listening to the experts in law and legal aid. It is deeply unfair that a 10 per cent cut should be put on one section, and one section alone, of a service that is paid for by the taxpayer.
The Law Society was here today to talk about the future legislation that will come before this House. I asked how much lawyers earn in the field of legal aid. I was told that young lawyers earn £25,000, as has been mentioned. They rightly deserve it, but there are many manual workers, tradesmen and semi-skilled people who earn that kind of money and work hard for it. However, we are making a 10 per cent cut.
As the noble Baroness, Lady Deech, said, many of those who work in the legal aid service are women. I know that there is not much sympathy for Members of Parliament at the moment but I met a former colleague, a lady Member, who said that a substantial part of her salary goes on childcare. There is no doubt that the cost of childcare has gone up. It has gone up for those young mothers who work as solicitors. Any of us who drive a car will know that prices are going up every time we go to a forecourt. Lawyers need to travel to get to court. They are not just based in London. Therefore, this cut is extremely unfair.
I am surprised by the Minister, who was at one time a member of a trade union. I do not know whether he still is; it would have been the T&G that he was in, would it not? I do not think that any organiser in the Transport and General Workers’ Union would want a cut of 10 per cent in the workforce, or take it lightly, so why should we do this?
In the constituency that I previously served and the place that I was raised in, a great many men and women who were asylum seekers came, as a result of a decision of the Home Office, to live in my community. More often than not, they came and received advice from legal aid practitioners. While those asylum seekers were coming to me, they were also going to the legal aid practitioners. I was able to form a good working relationship with those practitioners and found that they were doing things over and above their duties as solicitors—working outside office hours and going to people’s homes to try to help them. These practitioners are the people on whom we are going to impose cuts.
As the noble Lord said, cuts have to be made, but we have to look at how we implement them. It is the easiest thing in the world to say, “Right—10 per cent across the board”. However, it is not necessarily the right thing to do. I urge the Minister to reconsider this matter. At a time when many young people in this profession cannot even get mortgages, because that is difficult, they have to go into the rented sector, and their overheads are far more than they used to be. I can recall times when people did not have access to legal aid solicitors, and the difficulties and hardship that that caused for their families lasted for years. I hope that the Minister reconsiders this matter.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this is the point in the evening when I thank everyone for contributing to a wide-ranging debate—so wide, in fact, that it would probably take me at least 40 minutes to reply. I will try to do justice to the debate in a shorter time because the House has more business to consider. I remind the House that this was supposed to be dinner hour business—a matter that the usual channels might look at in future when they do their planning.
The debate was indeed a trailer for the Legal Aid, Sentencing and Punishment of Offenders Bill—now known to its friends as LASPO—that will come to this House. I do not object to colleagues using the opportunity to widen the debate to cover some of those areas. The noble Lord, Lord Beecham, said that it was a “tawdry harbinger” of a long hard winter for legal aid. I say to the House—to the right reverend Prelate, my noble friend Lord Newton, and others—that there would be a long hard winter if this Government did not face up to the spending cuts that are needed. It is all very well, as the noble Lord, Lord Martin, said, to say that this 10 per cent cut was the easy way. I put it to him that the easy way, which we have heard time and again tonight, would be to say, “Not this cut. Not that cut. We would do it in a different way”. We have had to face up to the fact that we have to make some hard decisions.
It is not just this part of legal aid that is taking the hit. The Ministry of Justice is a relatively small department with a budget, when we came into office, of £10 billion. We made a commitment for the spending review to cut that by £2 billion. As the noble Lord, Lord Bach, knows, we have only four major areas of responsibility—prisons, the Probation Service, legal aid and court services. They have all taken their cut and it is simply not true to suggest that we have taken a particularly easy view in terms of legal aid. As my noble friend Lord Marks said—and, to be fair, the noble Lord, Lord Bach, echoed it—the previous Labour Government were looking at legal aid. I went to the Commonwealth Law Conference. I have never used the comparison with continental legal aid because I know that there is a different system there, but I particularly sought out the Canadian, Australian and New Zealand law officers to talk about legal aid and they confirmed what the noble Lord, Lord Bach, knows full well—they all consider our legal aid system to be, in their terms, “absurdly generous”. It is also untrue that we have not made comparable cuts in criminal legal aid. In fact, the parallel order will, over the period, save some £80 million in criminal legal aid spending.
The noble Lord, Lord Bach, particularly mentioned Law For All. That is interesting because it very much echoes what was said when the Immigration Advisory Service closed. Let us be fair: Law For All has closed before any of these legal aid cuts have come in, so the legal aid cuts have not caused its collapse. However, it is interesting that the Legal Services Commission was able to make provision from other providers, and I shall return to that in a few minutes. We have recognised the problem relating to CABs and law centres, and I shall try to cover that in my main remarks.
The noble Baroness, Lady Deech, made an interesting point. I am proud to be the Minister responsible for promoting diversity in the legal profession. I put it to the noble Baroness that it is not a matter of diversity to suggest that women and black and ethnic minority lawyers should be corralled in one part of the legal profession. Indeed, my drive in terms of diversity—the noble Baroness is quite right and I have talked to both the Bar Council and the Law Society about this—is that the profession as a whole has a responsibility to promote diversity, not in the narrow area of legal aid but across the profession. To be fair, I think that they are responding to pressure in that area. We are taking diversity extremely seriously.
The noble Baroness and a number of other noble Lords also mentioned the Family Justice Review, which is a separate and independent programme of work looking at the entire family justice system. Our proposals are not dependent on the outcome of that review and are focused on legal aid; they go in the same direction as, and in support of, the aims of the Family Justice Review, which I am assured will be published very shortly.
The noble Baroness, Lady Deech, and a number of others talked about the fee levels reducing access to good-quality experts. The benchmark rates for experts have been applied by the Legal Services Commission for some time. The truth is that there are only limited anecdotal reports of problems with access to experts.
The noble and learned Lord, Lord Scott, accused us of weasel words in the Explanatory Memorandum, and I hope that my opening remarks have removed those weasel words. Of course, much of this has been driven by the need for cuts in public expenditure, but we have tried to do so in a way that focuses legal aid on the most needy.
We go back to the issue of the level of spending. What is so sacrosanct about £2.2 billion? It certainly was not sacrosanct for the previous Labour Government because they were planning to cut it anyway. The system is not being dismantled. It does not help when the noble Lord, Lord Beecham, makes that kind of comment. I could make a point about the earnings of barristers in family legal aid work, but let us not go down that route.
Lord Beecham
The lack of consultation to which I referred and on which I quoted the legal aid lawyers was in relation to this fees order, not the Green Paper.
Lord McNally
These were all foreshadowed in the Green Paper. The noble Lord, Lord Newton, is not a happy bunny but, as I said to the noble Lord, Lord Beecham, if we were not willing to take tough decisions, there would be a lot more unhappy bunnies around because we would be paying interest rates of two, three or four times what we are paying now, which would result in far greater cuts in public expenditure and services. The fact that our Government are not making headlines in relation to the economic situation in which they find themselves is because we had the courage to take tough decisions early. I have no doubt that when we ask colleagues and the Opposition to face up to that fact, we will always have the problem that these are tough decisions; we have never resiled from that.
Lord Higgins
Yes, I realise that, but my noble friend has just made a rather extraordinary statement. He said that we would be paying interest rates three or four times greater than we are now and I just do not understand what he means.
Lord McNally
At what rates is Ireland borrowing at the moment? I am suggesting that we would have lost control of our economy in the way that some parts of Europe have lost control of their economies. The consequences for public expenditure would have been much more severe. I would have thought that I would have had the support of my noble friend in that.
Lord Higgins
No one is more enthusiastic than I am that we should cut the deficit as fast as possible. I have made that clear, time and again. I just did not understand the quantitative statement that he made, but I do not wish to delay the House further.
Lord McNally
On the other points that the noble Lord, Lord Newton, made, legal aid is currently available for legal advice on any mental health matter and representation for mental health matters heard in the county court, such as charging a detained person’s nearest relative for mental health legislation purposes, for damages claims and for representation before the first tier mental health tribunal and onward. We propose retaining these changes within the scope of legal aid.
In 2010, tenders for legal aid contracts for mental health demonstrated a strong demand for mental health work, with nearly three times as many new cases bids than there were cases available.
I hope that answers the points that the noble Lord, Lord Newton, raises; namely, that there is the supply that he was concerned about and that we will continue this in scope.
The House will be aware that the Government have had to make some tough decisions. As I mentioned, the noble Lord, Lord Bach, accepted that when he had responsibilities for this matter the legal aid fund had to play a part in the often difficult exercise. To govern is to choose. It is a key role of Government on behalf of the taxpayer to ensure that the amount they pay for any service represents maximum value for money. In this context it is essential that the Government ensure that they only pay the rates that are necessary to secure the level of services that are required. While this may not be welcomed by those who provide services funded by legal aid, it is a reality that suppliers of other services across the country face on a daily basis. The Government recognise that some providers may choose not to continue to provide legally aided services in this environment, but it is not the purpose of the legal aid system to sustain the current legal market. Rather, we want to continue to have a sufficient supply of providers of satisfactory quality to provide an appropriate level of services for legally aided clients.
The order that we are debating this evening introduces a number of changes to the fees that the provider can currently receive for carrying out legally aided work. The main features were referred to by the noble Lord, Lord Bach. Justice is required to make savings in the year 2014-15 of about £50 million. My noble friend Lord Marks referred to the total savings of £120 million. With the exception of the family fee reforms which will take effect on 1 February 2012 when new contracts under the family re-tender exercise are expected to commence, the new fees took effect on 3 October 2011 and apply to all cases commenced after that date.
The reforms were subject to a full public consultation which ran from 15 November 2010 to 14 February 2011. I have already referred to that in reply to the noble Lord, Lord Beecham. With the exception of the Law Society, no respondents provided any form of detailed numerical analysis of the market. The Law Society did so through Mr Andrew Otterburn. His report indicated that while the fee reduction will inevitably reduce the income of solicitor firms, on the whole, they would still make a profit even before making any efficiencies in working practices.
Subsequent to his report, Mr Otterburn specifically confirmed to the MoJ that, in his view, an overall phased reduction in fees of around 10 per cent, with the reduced fees only applying to new cases commenced after the implementation date, would allow solicitor firms time to adjust to the new fee levels and would not, therefore, necessarily make supply unsustainable.
The Government accept that the proposed reforms may be particularly challenging to the not-for-profit sector. That was raised by a number of colleagues. However, it is also the case that the major issue for this sector, generally, is change to other sources of funding; for example, as was acknowledged by the noble Lord, Lord Bach, from local authority cuts, which may make supply in the areas they cover vulnerable in any event.
This is clearly a matter for concern for the Government as a whole, and the issue of the future of the voluntary advice sector will be considered as part of a cross-Government review on which an expected announcement will be made shortly. In the interim, the Government have already provided transition funding to assist the not-for-profit sector to adapt to the changing financial environment. I understand that overall 45 individual CABs and 17 law centres have taken advantage of this fund. As the noble Lord will be aware, the Government will also be providing a further £20 million of funding for the not-for-profit sector. Specific details of this fund will be made available shortly.
In the context of legal aid services, the issue is whether services will be available for clients rather than whether that service is provided by any particular provider. We assessed the likely impact of the reforms when considering the responses to the consultation and overall are satisfied that the reforms are sustainable and that, although individual providers may leave the legal aid scheme, there will be a sufficient supply of providers of satisfactory quality to provide an appropriate level of service in all areas of law. The Government therefore consider that the fee reductions will be sustainable and will ensure that clients can continue to access legally aided services.
As noble Lords will be aware, the Justice Committee report on legal aid concluded that, given the extent of the savings that the Ministry of Justice is having to make, in principle it is correct that fees should be reduced. We are willing to look at areas of isolation—the so-called legal aid deserts—and there are a number of actions that the Legal Services Commission can take to mitigate shortfalls if they develop. As I said earlier, it is also true that some of the fears that people would not come forward have not been borne out in areas where individual firms have collapsed. Indeed, in all the areas where we put forward contracts, there has been an oversupply in terms of those seeking that work.
In addition, there is a genuine alternative. The Community Legal Advice telephone helpline is an alternative for those involved in legal aid. I see the noble Lord, Lord Beecham, shaking his head. The other night, I went to a Law Society function giving prizes to successful law firms, and I was amazed by how many of the prize winners were offering online and distance advice. The old idea of face-to-face may not survive. There is no doubt in my mind that the legal profession is a profession in transition in many respects.
I am being told to shut up, and I will. The fact is that wherever we have been looking at new contracts, we have found that they have been oversubscribed, so I do not think that this is the issue that is suggested. It is not a 10 per cent cut per individual. It is a challenge to those firms and to the legal profession to find different methods of service, different structures and different efficiencies. That is a pattern that many professions and many industries have found over the years. We are confident that there are sufficient numbers of providers willing to remain in the legal aid market. I am well aware that a lot of what we have discussed today is a dress rehearsal for when the LASPO Bill comes, but I do not believe that it would be right to pass this Prayer this evening, and I sincerely hope that the noble Lord, Lord Bach, will resist putting the Motion to a vote.
Lord Bach
My Lords, I thank all noble Lords who have taken part in this debate, and especially the Minister for his winding up. I will give the House the good news, which is that I certainly do not intend to divide the House. I would very much like to, particularly given the degree of support for my Motion from around the House tonight—I am most grateful to noble Lords who have supported me—but it is too late to call a vote tonight, and in any event I am not certain that it would be the right thing to do, given that the Bill is due to come to this House next month. I will not be calling a vote, so anyone who wants to go now, please feel free.
I am afraid, though, that it was not the Minister’s arguments that persuaded me not to call the vote—indeed, if he had gone on much longer I might have been tempted to call it in any event. I shall make a few points and then the House can move on. Some very good speeches were made, if I may so. The noble Baroness, Lady Deech, talked about the Bar with great experience and knowledge. The noble and learned Lord, Lord Scott of Foscote, made some very important points, one of which I will come back to at the end of what I have to say. The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Ripon and Leeds were both right on the spot with their concern for children law, if I may call it that. My noble friend Lord Beecham, with his experience, made very telling points as always. Last, but certainly not least, the noble Lord, Lord Newton of Braintree, made a very telling contribution, and one to which I think the Government side should listen with some concern.
As to the speech of the noble Lord, Lord Marks, of course I admired his loyalty, perhaps rather more his loyalty to the Government and to the Minister than to his party, which as I understand it has already made it clear at conferences twice this year that it does not like the way in which the Government are behaving towards legal aid. He asked me to state which cuts my party would have made in Government. I am not sure that he was listening with his usual care to what I said in my opening remarks, which was that the Labour Lord Chancellor and myself put out a White Paper called Restructuring the Delivery of Criminal Defence Services, which we would almost certainly have put into effect had we been elected—which we were not—and which would have saved a great deal of money. It would have been controversial and I have no doubt that there would have been debates in this House too in that event.
I did notice that in his interesting speech there was nothing at all about social welfare law and nothing about whether he felt it was right to attack social welfare law. What I had to say earlier was very much based around that part of the order. He said very little about criminal law, either, and about whether savings might be made in that field. He quoted figures and speeches that I had made, in which I, like legal aid Ministers down the years—as they no doubt will in the future—had said how generous our legal aid system was compared to the ghastly rest of the world. I did use those phrases, and there is some justification in them, but to be honest, not perhaps quite as much as I used to think when I spouted those words. For example, we compare ourselves with New Zealand, another common law country, and say, “My gosh, New Zealand gives a much smaller amount for legal aid than we do”. However, the situation in New Zealand is quite different. There, for example, there is no liability compensation, which costs a great deal in this country. There are other considerations as well.
Let me be frank: when we were in Government, I have no doubt that we made mistakes in this field. I am sure we did. There is no doubt in my mind that his Government are making mistakes now as well. Perhaps the noble Lord, Lord Marks, will remember next time he speaks to the House on these matters that we are dealing with what his Government are intending to do, not with what my Government did or did not do when they were in office.
The Law Society has suggested savings of up to £350 million as an alternative to the legal aid cuts that the Government are putting forward. As we did not hear it tonight, we look forward very much to hearing what is wrong with the Law Society’s—
Lord McNally
What is wrong with the Law Society’s figure is that it does not save public expenditure to shuffle costs around Whitehall to other departments or to propose extra taxation on alcohol. That is not saving public expenditure; it is shuffling the pack.
Lord Bach
If the noble Lord is right, perhaps he will explain this decimation of social welfare law, with its few savings for the Ministry of Justice, and how it will cost infinitely more to the state as a whole when problems are not solved, people are chucked out of their houses, debts grow bigger, families break down and children commit crime. Other departments will have to pick up the pieces for the paltry savings that the Ministry of Justice will make. Please do not give us that stuff about public spending. The truth is that these Ministry of Justice savings—we have said that we accept that the MoJ has to find a number of savings—will cost the state and the community much, much more.
As the noble and learned Lord, Lord Scott of Foscote, said, civil legal aid is not an optional extra. The concern is that this Government are treating it just as an optional extra and the cost will be much greater. We could see which way the Government were going on legal aid way back in June or July 2010 when out of the blue they removed the grants that were given by the Legal Services Commission for young legal aid lawyers to get legal contracts with legal aid firms. It cost a few million pounds a year, if that. But the Government abolished them at the start and we should have been wise as to what they were planning to do now. There was absolutely no reason for doing that and there cannot be any reason for doing what they are intending to do now to social welfare law.
Legal aid in the civil field is well worth protecting. I shall end with a quote from Supreme Court Justice Lewis F Powell who spoke about the American system but it could just as easily be applied to the British system. He said:
“Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists … it is fundamental that justice should be the same, in substance and availability, without regard to economic status”.
He was right. I hope only that the Government change their mind. I beg leave to withdraw the Motion.
Crime: Youth Justice
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Lord Warner
To ask Her Majesty’s Government whether they have changed their policy regarding the abolition of the Youth Justice Board in the light of the public consultation and the board’s assistance in dealing with the aftermath of recent street riots.
The Minister of State, Ministry of Justice (Lord McNally)
No, my Lords, it remains the Government’s intention to abolish the Youth Justice Board and to carry out its main functions within the Ministry of Justice.
Lord Warner
My Lords, I suppose I ought to thank the Minister for that reply, because he has the disadvantage of his department having lost some of the responses to the summer consultation. However, is he aware that the Association of Chief Police Officers and the Magistrates’ Association have written trenchant letters to Mr Crispin Blunt, his colleague, saying that the Government have got this wrong and that the board should not be abolished? How many other organisations have written in similar terms in response to the consultation?
While he is about it, can the Minister explain to the House why it is right to abolish one commissioning board in order to improve ministerial accountability but in another department it is appropriate to install the daddy of all quangos at the same time—the National Commissioning Board, for the Minister's information—and can he assure the House, as the noble Earl will later, that that in no way affects ministerial accountability?
Lord McNally
My Lords, perhaps fortunately, I am responsible for the Ministry of Justice, and, there, we have come to the clear conclusion that we can operate the responsibilities of the Youth Justice Board better by creating a new youth justice division, which will be a dedicated part of the MoJ sitting outside NOMS, and maintaining continuity and expertise by agreeing that John Drew, the current chief executive of the YJB, will lead the division.
We have indeed received a number of responses—70 in all, I think—to the consultation, which closed on 11 October. The department is studying those responses and will report in due course.
Lord Thomas of Gresford
My Lords, Mr Crispin Blunt, in his evidence to the Justice Committee in another place, said that there were complaints from youth offending team managers about the Youth Justice Board. How many complaints were there and what was the nature of those complaints?
Lord McNally
I have not seen in detail the evidence given by my honourable friend. I suspect that almost in the order of things there are occasional irritations between a central and a local body. Throughout the life of the YJB, there have been various debates about where the onus of responsibility should lie. We believe that by slimming down the central role of the YJB, we can give youth offending teams more responsibility, in keeping with the Government’s localism policy. I will investigate whether the exact exchanges that Mr Blunt was referring to are available on the public record and what they contain, and if I can reveal them to my noble friend, I will.
The Earl of Listowel
My Lords, will the Minister thank the Secretary of State for the care with which he has listened to your Lordships’ concern across the House at this change? Does he know of any chief police officers who support the change? Does he understand my concern, as vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers, and as treasurer of the All-Party Parliamentary Group for Children, that this will not only be less safe for the public but will be a step back for those children in the criminal justice system and will mean fewer children going on to make a better life for themselves having had a bad start?
Lord McNally
I am well aware that the YJB is a much loved organisation and that a number of organisations have come to its aid. The noble Lord, Lord Warner, has voiced a number of concerns about this. We will return to this when the Public Bodies Bill returns to the House. I do not see that creating a new youth justice division within the MoJ, maintaining continuity and expertise, retaining the expertise of the staff who have worked on the Youth Justice Board, strengthening its focus on youth justice by establishing an advisory board on youth justice, and agreeing that Dame Sue Street, a non-executive director of the MoJ who has experience and knowledge of the youth justice system, should take a direct interest in youth justice matters, is in any way a retreat from the kind of commitments that the noble Lord wishes for.
Lord Bach
My Lords, the Minister has time after time from that Dispatch Box praised the work that the Youth Justice Board does. Everyone agrees that it has kept down the number of young people in custody and that it played a vital role in the aftermath of this summer’s riots. Why on earth are Her Majesty’s Government still determined to abolish it? Is it sensible or wise to abolish an organisation that everyone, including Ministers, thinks is doing a first-class job? How ridiculous is that? Would it not be sensible and rather more mature for the Government to drop these plans now?
Lord McNally
My Lords, we believe that the job can be done better. We have acknowledged—and I have certainly acknowledged from this Dispatch Box—that the YJB has overseen a considerable amount of success in treating young offenders. As I have just read out, the governance for youth justice within the Ministry of Justice will be better because it will have a more direct responsibility to Ministers. The buck will stop with the Minister responsible for justice, not with an arm’s-length body. We believe that that is an improvement.
Baroness Butler-Sloss
My Lords, will the Minister ensure that the new youth justice division will work collaboratively and regularly with the Department of Health and the Department for Education?
Lord McNally
I can give that assurance absolutely. One of our key approaches across the criminal justice system is to make sure that we have an holistic approach to offending, which particularly applies in the youth justice system.
Crime: Home Protection
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am extremely grateful to all noble Lords for their contributions to this debate. Although it has been a short debate, it has been extremely informative and worth while. I pay particular tribute to the noble Lord, Lord Blencathra, in introducing it. I have told him before that one of my very dear friends, now no longer with us, was Lord Gray of Contin. I remember Hamish telling me that he had found a bright, new young star for the Conservative Party for whom he predicted great things. I am sure that it would have given Hamish great pleasure to have been here today to hear the noble Lord introduce these matters with such authority and passion.
The noble Lord, Lord Bach, ended with some interesting quotes, including “state-sponsored revenge” and “sentencing … in the home”. It is worth while stating from the beginning that this is not the Government’s intention or the direction of travel. I hope that my reply to the contributions that have been made in the debate will make that quite clear.
I am not a lawyer, so, unlike the noble Lord, Lord Thomas, or the noble Lord, Lord Bach, I cannot unfortunately call on experience from various cases. My only experience is that I once chased a burglar down the street in my pyjamas in my bare feet. I was 21 at the time but I could not catch him even then, so I cannot tell what I would have done if I had caught up with him.
Lord Thomas of Gresford
Does the Minister accept that if he had chased after him and had beaten him up then, that would have been revenge and not self-defence?
Lord McNally
By the time I had reached the end of a rather long road near Archway, I was so exhausted that I doubt that I would have inflicted much damage on him.
However, I understand the point made by the noble Lord, Lord Blencathra. Someone breaking into your own home is a terrifying experience. A noble Baroness in this House—I will not name her because I did not get her permission—told me about a burglary and what a trauma it was for her. Interestingly enough, the healing for her came when the burglar was arrested later and she was asked whether she would like to meet him. Her reason for telling me the story was to advocate the benefits of restorative justice. She said that whereas what she had confronted in her flat was a terrifying situation and someone she was very frightened of, when she met a rather pathetic drug addict who had broken in in the hope of getting something to feed his drug addiction the terror somehow drained away. Her story was a little bit of anecdotal evidence of restorative justice in action and benefiting the victim.
The noble Lord, Lord Bach, asked about the Human Rights Act and the ECHR. As he well knows, any proposals that we would have to make—
Lord McNally
My point on that is that, as with any legislation, the Minister in the sponsoring department would have to give the assurances on compatibility. I am absolutely convinced that when it comes to my turn to put these matters at the Dispatch Box my noble friend Lord Lester will show the same unswerving support to me as the Minister as he showed to the noble Lord, Lord Bach, those couple of years ago, but we will see.
There is no intention to sweep away the reasonable force test, but we think that there is a case for clarification. The current law on self-defence was last reviewed, as the noble Lord, Lord Bach, said, during the passage of the Criminal Justice and Immigration Act 2008. That Act clarified the operation of these defences. The court must consider whether the degree of force used by the defendant acting in defence of themselves or others, or to prevent crime, was reasonable in the circumstances.
I know that the Opposition trawl back into past speeches by various individuals—they are entitled to do that; I have done it myself—but the coalition agreement states:
“We will give people greater legal protection to prevent crime and apprehend criminals. We will ensure that people have the protection … they need when they defend themselves against intruders”.
It is on that basis that we have started this process, as the previous Government did in 2008. As my noble friend Lord Thomas pointed out, this is a piece of law that has developed over 250 years. He went back to quoting Blackstone, and it is amazing listening to Blackstone just how contemporary it is in the issues that it addresses.
There is one thing that worries me about “reasonable and proportionate” and about the vigour of my noble friend’s approach. My noble friend Lord Thomas referred to a man who shot a trespasser and even the pacific noble Lord, Lord Selsdon, extolled the virtues of a shotgun—in that case it was for a 136-kilo boar—but there is a worry that we have to get the balance right on this. We do not want a vigilante society or one where people, in the pursuit of protection, start thinking that the gun in the bedside table is the best protection that they could get. It just so happened that my copy of New Scientist fell through the door as I was about to leave this morning. I had better come clean; it does not come for me but for my two sons, who are regular readers. However, I was looking at it today and my eyes fell on an article which shows that in the United States around 20,000 children are injured by firearms each year; a further 900 incidents are fatal; and some 30 million American children live in homes where there is at least one firearm. I know that the United States has very much more of a gun culture but I worry that unless we get the messages clear on this, we could slip towards the idea that firearms are a legitimate way of protecting your home. That is certainly not the way that we want to go.
Incidentally, the noble Lord, Lord Selsdon, pointed out that he was a former baseball player, hence the fact that he has a baseball bat, but I saw again in one of those statistics that there are far more baseball bats sold in this country than people who play baseball. It is probably worth a PhD being done somewhere to find what other uses there are for them. One of the things that came through in the contributions is that the facts are different in every case. Like my noble friend Lord Thomas, I put great faith and trust in a jury and a judge who hear all the facts and can balance the arguments. Again, we must therefore not retreat too far from those principles.
The noble Lord, Lord Selsdon, produced an interesting speech, as he always does. The early theme of it was, “I am a pacifist but I will knock the block off anyone who says that I’m not”, but he also got on to the issue of an Englishman’s home being his castle and where we have got to on things such as search and seize powers. He pointed out that the Protection of Freedoms Bill, which will be coming before this House, will address some of the issues that he has been campaigning on, including the scale of coverage by CCTV cameras. There is always an interesting kind of clash with CCTV; anybody who has been canvassing on the doorstep knows that people like CCTV and the security it gives, yet they feel a little uneasy about a surveillance society. We will be having opportunities to discuss those matters. On the delivery of leaflets, I have had debates on the doorstep with householders who believe that I am intruding by pushing through their letterbox a Liberal Democrat leaflet, whereas I have argued that I am exercising my right in a participating democracy. To date, none of those exchanges has ended in violence on either side.
I share some of the concerns of the noble Lord, Lord Selsdon, about intrusive telephone calling and the way in which these bodies now seem to be able to ring through for sales purposes. You can get them blocked but the noble Lord identifies a very real problem. There was also his concern about officialdom calling. One can say time and time again never let anybody into your house unless you are absolutely sure who they are and sure about the validity of the person calling. Yet I know from reading my local newspaper that the elderly are particularly vulnerable to calls from bogus officials, who use that opportunity to commit crime. So some of the issues raised by the noble Lord about intrusion and related matters are very pertinent.
I should like to respond to the challenge from the mover, the noble Lord, Lord Blencathra, and to the noble Lord, Lord Bach, by stating exactly where we as the Government are. The two main issues that were raised were self-defence and squatting. I can assure noble Lords that both issues are high on the Government’s priority list. They form part of a range of policies to fight crime and to give people greater confidence that the law will protect them when they go about their business in a reasonable and law-abiding way. I will outline the Government’s plans for clarifying and, where necessary, strengthening the law in both areas in the order that the noble Lord raised them.
First, let us be clear that there are a number of simple precautions that homeowners can take to reduce the risk of burglary such as installing alarms, planting prickly shrubs or other things along the perimeter fence, not leaving valuable items on display and leaving lights on when the property is empty at night. But even if every precaution is taken, there will be instances where an intruder is not deterred from breaking into somebody’s home. As I have said, it can be a very frightening prospect indeed to be confronted by an intruder in your own home. The Government believe that the law should be as clear as possible about what a homeowner can do to defend themselves, other people or property.
As noble Lords have heard, the current law on self-defence allows a person to use reasonable force to protect him or herself or other people, and to prevent crime. The current law makes clear that a person in this situation may use all force that is reasonable in the circumstances as he or she perceived them to be at the time. That last bit is important: the law rightly recognises—my noble friend emphasised this—that a person acting in the heat of the moment cannot be expected to weigh to a nicety precisely what level of force was required in the circumstances. Having said that, I agree with the noble Lord, Lord Blencathra, that the public may still be doubtful about what “reasonable force” means in practice and that further clarification in this area would be beneficial.
Noble Lords may recall that my right honourable friend the Prime Minister announced recently that he wanted to put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will have the law on their side. We have been working on new legislative measures to achieve that and are still finalising the details of the policy. The provisions will be designed to give people greater certainty about what it means to use reasonable force in self-defence. We are not planning to sweep away the principle altogether, or to give householders the right to use all the force that they are capable of mustering, which appears in some ways to be what the noble Lord is suggesting. Giving householders carte blanche to do whatever they like to an intruder would be a very dangerous strategy. A press release by the CPS in January 2005 provides some examples of where householders have and have not been prosecuted. In one extreme case, a defendant caught an intruder, tied him up, beat him up, threw him into a pit and set fire to him. I do not think that anybody would agree that that sort of behaviour should be condoned, even if the defendant was extremely frightened. If we abolish the concept of reasonable force and say that householders can do whatever they want to an intruder, we could effectively end up sanctioning this type of conduct, or other forms of vigilantism.
The noble Lord, Lord Blencathra, referred to recent cases in Manchester where homeowners had been arrested for killing intruders, only for the CPS to decide to take no action. In my view, these cases show that the law is broadly in the right place and that the majority of homeowners who act honestly and instinctively in self-defence will not be prosecuted, but I accept the noble Lord’s point that defendants in these cases may be on tenterhooks following such an intrusion and I think it is important that in these cases the CPS tries to act with some speed. I will draw his remarks to the attention of the Director of Public Prosecutions, who I am sure is aware of the need to be as expeditious as possible in deciding whether or not a charge should be brought, but I do not think it is right to say that householders should never be arrested for killing an intruder.
The police have a difficult job when they are called to an address where someone is dead. They have to work out what has happened and an arrest may well be necessary in order to allow for a prompt and thorough investigation of the case. The Government are working with ACPO on new guidance for the police in order to ensure that consideration is given to whether somebody may have been acting in self-defence, but there will always be cases that are not clear-cut, where it is important that the police investigate the allegation. I saw an example in an earlier briefing in which the apparent cause of death was an attempted burglary, but further police investigation showed that there were gang and drug aspects to the case that made the death not necessarily a result purely of self-defence. One has to realise that there are cases that are not as clear-cut as some of the Manchester examples that the noble Lord drew attention to.
Let me turn now to the points that the noble Lord raised about squatting. The Government share his concern about the harm that squatters cause. Residential and non-residential property owners have contacted Ministers and Members of Parliament time and again about the appalling impact that squatting can have on their homes and businesses. It is not only the cost and length of time it takes to evict squatters that irks property owners; it is also the cost of cleaning and repair bills which follow eviction. While the property owner is literally left picking up the pieces, the squatters have gone on their way, possibly to squat in somebody else’s property. Again, the noble Lord gave some very good examples of where even the smallest, most trivial of crimes bring down the full weight of the law, yet people can find themselves being told to take the civil law when their property has been squatted.
The current law already provides a degree of protection for both commercial and residential property owners, as offences such as criminal damage and burglary would apply. There is also an offence under Section 7 of the Criminal Law Act 1977 that applies where a trespasser fails to leave residential premises on being required to do so by, or on behalf of, a “displaced residential occupier” or a “protected intending occupier”. This offence means that people who have effectively been made homeless as a result of occupation of their properties by squatters can call the police to report an offence. However, there are many residential property owners, including landlords, local authorities and second home owners, who cannot be classified as “displaced residential occupiers” or “protected intending occupiers”. Given the level of public concern about the issue, the Government decided to consult publicly on options for dealing with it. There is a consultation paper out which sets out a range of legislative options. The consultation process ended on 5 October and generated more than 2,200 responses, which officials at the Ministry of Justice are now analysing.
While most property owners would evidently support tougher measures to tackle squatting, a number of bodies such as Shelter and other charities have pointed out that people would not squat if they had somewhere else to go. Of course, one of the Government’s priorities is to try to address the shortage of affordable housing. The Government are taking both sides of the argument into account as they develop proposals in the area. I cannot pre-empt the Government’s formal response to the consultation, but I hope that we will be able to announce our plans in more detail very soon. As I said, this has been a relatively short debate—although I have been told that I have over-run my time—but I hope that I have met a number of the points. I have certainly found it extremely useful, not least to have had a useful prod from both my noble friends.
Industrial Tribunals: Fees
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government will launch a consultation on the introduction of fees in employment tribunals and the employment appeal tribunals later in the year. That consultation document will set out options for proposed fee structures and the indicative levels that might be applied. No decision will be made on the level of fees to be paid until that consultation has been completed.
Lord Lea of Crondall
My Lords, I thank the Minister for that reply. Is he aware that the most recent consultation he has announced is only about the amount of fees and not about the principle, at a time when the BIS consultation has not yet been completed? Would he care to enlarge on the evidence to justify Mr George Osborne’s pre-emptive statement to the Conservative Party conference on 3 October, when he cited as evidence simply “perceptions” of “weak or vexatious claims”, when these are in fact being weeded out? Secondly, is the Minister aware of the recent statement by the chairman of the Administrative Justice and Tribunals Council that the Government’s policy is based on limited evidence, which would have,
“a disproportionate and chilling effect on employees”,
and, moreover, that he has expressed great concern about tearing up the BIS consultation process, which has not yet been completed?
Lord McNally
My Lords, the Government announced the introduction of fees into the employment tribunals and the employment appeal tribunals in the Resolving Workplace Disputes consultation published in January 2011. The consultation I have mentioned today will seek views on the fee levels, charging points and so on.
On the points that the noble Lord made, this is the whole reason for this second stage of consultation. Small businesses gave evidence about the burdens of what they describe as vexatious claims brought to them. I am sure that others will give evidence to the contrary. That is the point of consultation.
Lord Martin of Springburn
My Lords, I can recall the days when there were no industrial tribunals. Decent men and women were sacked and could not take any legal action. Are we now introducing a blocking mechanism—that is, fees—for industrial tribunals when the industrial tribunal system has been excellent in resolving disputes?
Lord McNally
My Lords, there is no aim to go back to what the noble Lord, Lord Martin, could rightly describe as the “bad old days”. The industrial tribunals system will remain and people will still have access to it. We expect that the tribunals will have the power to order that unsuccessful parties reimburse the fee paid by the successful party so that costs are ultimately borne by the party which causes the system to be used. There is nothing in the system that does not say that a small proportion of the costs cannot be charged. We do not believe that that would fundamentally undermine the very good work that the tribunal system does.
Lord Thomas of Gresford
My Lords, does my noble friend accept that meritorious claims will be as much discouraged by the imposition of fees as vexatious ones? The Government should not base their policy of charging fees on trying to limit the number of cases that come to the tribunals. My noble friend will recall the discussion that we had about this in the immigration appeals tribunal last week.
Lord McNally
My Lords, I suspect that we will have discussions along these lines over a range of issues. I suspect that small charges for access to courts such as the tribunal service will not have a deterrent effect on meritorious cases. One small range of consultations suggested that there might be a small fall-off in applications with the introduction of fees. As part of the consultation that will take place in December, we hope to widen that impact assessment to make sure that we are going down the right road. Between 2001 and 2010, there was an 81 per cent increase in cases going to employment tribunals. There is a limit to what a free service at the taxpayers’ expense can bear.
Lord Borrie
My Lords, instead of charging workers for exercising their statutory rights to claim whatever it is that they want to claim for unfair dismissal, discrimination, et cetera, we should try to return to the position when employment and industrial tribunals started, replacing the courts to provide a more informal, less costly and simpler system to operate so that people would have the opportunity to put their case to a body that could deal with matters free of charge without incurring the sort of expense now being suggested.
Lord McNally
My Lords, I fully endorse the growl of approval from the Benches opposite but this is precisely the argument that we will have again and again in the weeks and months to come. The problem is that a system that started off as a non-confrontational, non-legal settlement of disputes has become peopled by m’learned friends at great expense. We are trying to move away from a legalistic approach to settling disputes to one that will settle more by arbitration, conciliation and mediation.
Lord Scott of Foscote
My Lords, the accessibility of a civil justice system is one of the features of the structure of the administration of justice that every civilised country ought to provide for its citizens. Is not the danger of a fee structure system that the fees might be set at too high a level, thereby denying access to justice to those unfortunates who could not afford such a fee?
Lord McNally
My Lords, that is precisely why we are consulting and taking a further impact assessment—so that we will have a fee structure that will not have the detrimental effects the noble and learned Lord is suggesting.
Legal Aid
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Legal Services Commission is responsible for the administration of the Legal Aid Fund and has already taken steps to regulate and accelerate payments to legal aid providers. Standard monthly payments are made in advance for advice work completed under contract and, in addition, weekly payments are made on bills submitted for civil representation work. Providers may make interim claims for payments on account while a case is still open.
Baroness Benjamin
I thank my noble friend for that encouraging Answer. As you may well know, these specialist solicitors are not only the lowest paid solicitors in the country but also have to pay tax on unpaid work and are paid by the Government only twice-yearly in arrears. As a result, their businesses are under enormous financial pressure. Some are even going out of business because banks are calling in their loans. This is likely to result in the loss of assistance to the neediest families in our community, especially children. How soon will quarterly payments be implemented?
Lord McNally
My Lords, I can not give a precise answer to that, but the LSC has taken a number of steps to expedite payments to contracted providers and is committed to investigating any claim where a bill is not paid within the correct timescale. While there have recently been some delays in civil bill processing, the LSC maintains that the vast majority of payments are being made within their published target times. I will, however, look at the matter of quarterly payments.
Lord Thomas of Gresford
Is my noble friend aware that the Law Society has had to write to banks, asking them to treat legal aid practitioners with special care, because of a backlog in payments by the Legal Services Commission, and is his response—that they are all paid on time—not a little disingenuous? Is there not a very considerable backlog at the moment?
Lord McNally
My Lords, I did not say that they were all being paid on time, but I did say that the Legal Services Commission is addressing the problem that has arisen. A backlog had built up and the commission faced criticism, but it has addressed the problem and is moving to cut the backlog. So I am not being disingenuous in any way. I am acknowledging that there has been a problem, which the commission is addressing. It maintains that the vast majority of payments are being made within their published target times.
Lord Bach
My Lords, the Question tabled by the noble Baroness is about legal aid practitioners in the field of domestic violence. Based on the incredibly restrictive definition of domestic violence set out in the legal aid Bill currently going through another place, how do the Government propose to protect women who are at risk of domestic violence for the first time?
Lord McNally
My Lords, we will eventually discuss the various scopes in the legal aid Bill. The Government are satisfied with the scopes they have set in the Legal Aid, Sentencing and Punishment of Offenders Bill and believe that they cover the most vulnerable in family and domestic law. But I freely admit that we are going to have some interesting debates on the matter. I hope that that helps the noble Lord. The debate has yet to come to this House.
Lord Elton
My Lords, the noble Lord has referred on a number of occasions to the “target time”. Can he give us the definition of that?
Freedom of Information (Designation as Public Authorities) Order 2011
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Lord McNally
That the draft order laid before the House on 5 September be approved.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 October.
Freedom of Information (Designation as Public Authorities) Order 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Freedom of Information (Designation as Public Authorities) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the purpose of this draft order is to bring the Association of Chief Police Officers, or ACPO, the Financial Ombudsman Service, or FOS, and the Universities and Colleges Admissions Service, or UCAS, within the scope of the Freedom of Information Act. The effect of the order is to apply the Freedom of Information Act to those functions of each body which appear to the Secretary of State to be of a public nature. That amounts to all the functions of ACPO and FOS and the applications and admissions functions of UCAS.
This Government are committed to ensuring greater openness and transparency in order to enable the public to hold to account those who deliver the services affecting their day-to-day lives. The coalition agreement set out this intention, stating that the Government would,
“extend the scope of the Freedom of Information Act to provide greater transparency”.
This order is part of our work to meet this commitment.
The Freedom of Information Act gives any person the legal right to request access to recorded information held by a public authority. It applies to more than 100,000 public authorities, including central government, schools, the NHS, local authorities and some publicly owned companies.
This order designates three additional bodies as public authorities for the purposes of the Freedom of Information Act, using the powers contained in Section 5 of the Act. Section 5 enables the Secretary of State to designate a person as a public authority either if they appear to the Secretary of State to exercise functions of a public nature or if they provide, under contract made with a public authority, any service whose provision is a function of that authority. The order covers bodies falling within the first limb: bodies which appear to exercise functions of a public nature.
Where a body is designated as a public authority under this limb, it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the order will be subject to the Act. So an order under Section 5 can bring all or just some of a body’s functions within the scope of the Freedom of Information Act. Therefore, to understand how the order extends the Freedom of Information Act, it is important to look not just at which bodies the order designates but at which of their functions the order specifies.
With that background in mind, I turn to the detail of the order before us today. The order designates both ACPO and the Financial Ombudsman Service for all of their functions, and UCAS for its main functions, as public authorities for the purposes of the FOI Act. Before making the order, all three bodies were consulted and their functions analysed to determine which of them appeared to be of a public nature.
I turn first to ACPO, which provides leadership for the police force, aims to improve policing, acts as a voice for the force and provides the strategic police response in times of national need. By way of background, it is worth noting that the individual chief police officers who comprise ACPO are already subject to the Freedom of Information Act.
The draft order lists each of ACPO’s functions. These functions are derived from ACPO’s objects as listed in its memorandum and articles of association. Each function makes a fundamental contribution to the policing of the state, both individually and collectively. On this basis, the Secretary of State has concluded that all of ACPO’s functions appear to be functions of a public nature and this order will bring them all within the scope of the Freedom of Information Act.
The Financial Ombudsman Service administers an ombudsman scheme in the financial services sector under which certain disputes can be resolved quickly and informally by an independent person. The Financial Ombudsman Service’s functions are set out in statute. It provides an alternative, impartial dispute resolution process to the courts. There is a strong public interest and benefit in the provision of impartial, non-profit-making regulation of financial services. As all of the Financial Ombudsman Service’s functions are directed towards the provision of this service, this order will bring them all within the scope of the Freedom of Information Act.
UCAS’s main function is to provide and maintain a central application and admissions services for higher education and certain further education establishments. It also provides other, more commercially based functions, such as the provision of marketing services. The majority of bodies for which UCAS provides and maintains a central applications and admissions service are already subject to freedom of information legislation. There is clearly a strong public interest and benefit in the provision of an efficient and fair means of applying for entry to such bodies. Indeed, if these services were not provided by UCAS, it would fall to those educational bodies that are already subject to the Freedom of Information Act to provide them instead. This provides a clear basis for concluding that the applications and admissions function appears to be public in nature. However, UCAS’s other commercial functions can be seen as distinct from the central applications services that it provides and are not considered to be functions of a public nature. This order therefore includes only UCAS within the scope of the FOI Act for the purposes of providing a central applications and admissions service to bodies already subject to Freedom of Information legislation.
As I have outlined, the Secretary of State concluded that the three bodies subject to the order appear to varying degrees to exercise functions of a public nature. As a result, it is appropriate that these bodies be subject to the same scrutiny as other public authorities, so that they become more open, transparent and accountable. This order will achieve that aim for three bodies, but this is just the start. The Government are currently consulting more than 200 further bodies about their inclusion in future orders, alongside pursing primary legislation to extend the scope of the Freedom of Information Act to more publicly owned companies.
I hope noble Lords will agree with me that this order is an important step towards greater transparency, and I commend it to the Committee.
Lord Dixon-Smith
My Lords, I wonder if the Minister would just answer a simple question. I used to have some relationship with the police service. It is not at all unusual for police services from time to time to get caught up in security matters. It follows from that equally that the subject occasionally occurs in ACPO matters. The Minister said that all activities would be subject to the Freedom of Information Act. How will we resolve that particular dilemma if ACPO finds itself discussing security concerns?
Lord McNally
My Lords, I am very grateful for all the contributions, which have been extremely helpful in putting this order in perspective.
Let me deal first with the point raised by the noble Lord, Lord Dixon-Smith. If it was thought that a matter discussed by ACPO was should properly be protected for reasons of national security, the Act contains the capacity to claim exemptions for that information. That can, of course, be challenged through the Information Commissioner, The noble Lord is right to say that ACPO could sometimes discuss security matters but the Act makes provisions for the protection of national security in those circumstances.
The noble Lord, Lord McAvoy, raised a specific case in relation to Her Majesty’s Revenue and Customs. I cannot comment on individual cases. HMRC can protect commercial confidentiality in its dealings. I will be as interested as the noble Lord is to discover what the Public Accounts Committee finds out but it is a matter for that committee, rather than for us.
My noble friend Lord Maclennan, pointed out that the matter of those three bodies was first raised in 2007 and 2009. I am surprised not to see the noble Lord, Lord Wills, here, who turns up at these debates like Banquo’s ghost to point out that he was about to do X or Y on freedom of information, or that the noble Lord, Lord Bach, was. I acknowledge that this is part of a process started under the previous Administration. Indeed, I consider the Freedom of Information Act to be one of their great successes. The noble Lord, Lord Bach, is quite right: the fact that Ministers and public officials are sometimes discomfited by the Act has always been proof positive that it was a good piece of legislation.
My noble friend Lord Maclennan, asked how ACPO can have free and open discussions before ACPO policy is decided. We understand that bodies need a space in which to work out their policy but, as I recall, that was the great argument about Cabinet discussions as well. There is always a tension between having the right to know what has gone on in an organisation and protecting free discussion before a collective decision is made. ACPO welcomed its inclusion, and I am quite sure that it will manage to work out how to operate under the Act.
I understand the concern of my noble friend Lord Maclennan that we seem to be engaging in a one-off exercise, but that is not true; we will continue to monitor the working of the Act. I am very pleased that we have moved more quickly than we needed to post-legislative scrutiny; that is entirely healthy. The document to which the noble Lord referred is being prepared by my department as part of the process of post-legislative scrutiny. It will be an assessment of the working of the Act, which will provide a basic working document to the Justice Committee to allow it to start its work of post-legislative scrutiny.
That process will go in parallel with the exercise being carried out by my right honourable friend Francis Maude on the right to data, in which we will also try to push the boundaries of the citizen’s right to know about information. I understand where my noble friend is coming from in asking where all this fits. We are perhaps not moving in straight order on this, but we are getting the job done. By the end of this process many more organisations will be covered by freedom of information. We will have a lot more information proactively coming from government through the right to data process. As a result, we will have much more open government, with all the benefits that come from it.
I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.
I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director.
Lord McNally
Was it the Minister who came before us? The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.
The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.
On the question that the noble Lord, Lord Martin, raised about ACPO Scotland, freedom of information is a devolved matter, and the inclusion of ACPO Scotland is a matter for the Scottish Government. I hope I have covered the issues raised—
Lord McNally
I do apologise. The noble Lord, Lord Bach, raised that and I found the answer, which is twofold. Of the three, it was UCAS which raised some concerns when discussions began. Its concerns were the costs it would face in complying with the FOI Act, how it would protect sensitive information, and other costs outlined in the impact assessment. During consultation it was satisfied that the FOI Act exemptions could protect this information, and since those consultations it has been happy to see itself included within the ambit of the Act. I apologise that I got carried away with the questions asked by the noble Lord, Lord Martin. Does he have another?
Lord Martin of Springburn
If the Minister is getting carried away, I will perhaps push my luck. I noted that the Minister stated in his reply that he would encourage these organisations to put the information out to the applicant and the general public almost simultaneously. Encourage is not quite the word I was looking for. There should be a commitment to do this. For example, if an applicant asked a police authority for a piece of information then it could, by all means, give that information out at 2 pm on a specific day, but by 2.01 pm the rest of the world should know about it.
Lord McNally
So far as I understand at the moment, what we can do is urge best practice by the wide range of bodies that deal with a very wide range of requests. I recently went to Northampton to congratulate the local authority on setting standards for devolving freedom of information which we thought were best practice. It is very difficult to have a single diktat for such a wide range of bodies, but the Justice Committee, when it does its post-legislative scrutiny, can perhaps look at this, and consider whether the Act should be given more teeth to have a one-size-fits-all approach.
There would be counterarguments that small bodies have more difficulty in managing freedom of information. However, the point that the noble Lord, Lord Martin, is pressing is very valid. Except in matters of national security, or if there are specific matters that argue against immediate publication, freedom of information is not in the ownership of the requester but in the ownership of the public at large. Freedom of information is the right to know of the public at large. I also take the point—if it is not already doing so I urge the Justice Committee to look at this—that it seems a bit rum for someone to be in favour of freedom of information but want anonymity when asking for it. I would be very interested to see what is considered best practice here. I would have thought there was considerable argument to say that if somebody asks for freedom of information they should not be worried that somebody else knows they have asked for it. That is another matter which will be given thorough consideration. In the mean time, I commend this order.
Human Rights Act 1998
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The Minister of State, Ministry of Justice (Lord McNally)
Yes, my Lords. However, as the noble Lord will be aware, the Government established an independent commission to investigate the creation of a UK Bill of Rights in March 2011, thus fulfilling a commitment made in the coalition’s programme for government.
Lord Bach
My Lords, I thank the Minister for his Answer. The manner in which this important issue was not so much debated as debased last week by senior Cabinet Ministers was frankly infantile and not worthy of the serious matters involved. For a more serious consideration of the debate, may I urge the Minister and perhaps all Members of the House to read the article by my noble and learned friend Lord Irvine of Lairg, published in today’s Guardian? The Prime Minister and the Home Secretary have both said, and I quote the latter’s words, that,
“the Human Rights Act needs to go”.
Does the Minister agree with his right honourable friend the Home Secretary?
Lord McNally
One of the problems about party conferences is that the newspapers like to heighten and find clashes between Ministers. I am old enough to remember it said that every time Harold Macmillan returned from a journey abroad Rab Butler was at the bottom of the steps to grip him warmly by the throat. The Government’s policy is very clear, and the Home Secretary and Justice Secretary are on exactly the same page on this. The commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. It will provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of the UK chairmanship of the Council of Europe. That is the Government’s policy.
The Archbishop of York
Does the Minister agree that much of the criticism of the Act is based on ill-judged statements and decisions by public authorities, rather than what the European Convention on Human Rights actually says and what the courts in this country have decided in applying the Act? Does he endorse the plea of Sir Walter Scott in The Fair Maid of Perth, “Touch not the cat”?
Lord McNally
I am not sure that I would call in evidence Sir Walter Scott on this, but the Government have very clearly in the programme for government, set the commission the task of looking at the Act and how it is operating. We have given it a parallel but equally urgent task; we are using our UK chairmanship of the Council of Europe to push forward an agenda of reform of the working of the court. Both are extremely useful exercises and, when both are completed, we will be able to make a proper assessment of where we go next.
Lord Brittan of Spennithorne
My Lords, does my noble friend recall that the European Convention on Human Rights derives largely from the work and suggestions of Conservative Ministers in the late 1940s and that, although individual decisions may be uncomfortable, the general thrust of giving effect to human rights through legislation of this kind is one that reflects well on this country and provides a good example for others?
Lord McNally
My Lords, the noble Lord, Lord Bach, referred to the Guardian article by the noble and learned Lord, Lord Irvine, in which the noble and learned Lord says that,
“the main proponents of the European convention were Conservatives, including Churchill and Macmillan. The convention was substantially the work of British jurists in a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689”.
Baroness Greengross
My Lords, in declaring an interest as the second lead commissioner on human rights in the Equality and Human Rights Commission, I ask the Minister for reassurance that the Government will, in any look at a Bill of Rights, not go back on the basis of the Human Rights Act but build on it—that they will look at some of the controversial workings of the Act, which need looking at, but not take us backwards. It is very important that we are all committed, as I think we all are, to the basic human rights principles.
Lord McNally
Again, I can do no better than to quote the coalition agreement, which says:
“The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties”.
Lord Irvine of Lairg
While acknowledging the Minister’s own commitment to the Human Rights Act, are there not at least double standards at work, or worse hypocrisy, when the Prime Minister and other members of the Cabinet preach the virtues of human rights and respect for the rule of law abroad while trashing these self-same virtues at home?
Lord McNally
I think that those are rather strong words. I have said before that in a democracy where there is a separation of powers there can be a healthy relationship between parliamentarians and the judiciary, whereby parliamentarians can sometimes express concerns about how the judiciary has interpreted some of Parliament’s Acts and, likewise, the judiciary may occasionally pass an unkindly word about the behaviour of parliamentarians. As long as that is kept on a basis of mutual respect and due courtesy, it is a healthy way for a democracy to go.
Lord Mackay of Clashfern
Does my noble friend agree that it would be wise for all of us to be careful how we speak?
Lord McNally
My Lords, that is a piece of advice that I hope echoes and re-echoes down the Corridor.
Lord Lester of Herne Hill
With that advice, I am not sure whether I ought to ask this question, because I am a member of the Commission on a Bill of Rights for the United Kingdom, so I must choose my words with great care. Is the Minister aware that the Council of Europe has commended the Joint Committee on Human Rights, on which I serve, as a model for Europe; and is he aware also that, across the common law world, we alone have reconciled effective remedies with respect for parliamentary supremacy?
Lord McNally
It does not surprise me that that is the reaction. When we set up this commission, indeed when we announced that we intended to take a vigorous attitude to reform of the court, we were told, “Oh, it’ll never work—you will get nowhere with this”. The fact is that we have found an increasing number of countries around Europe which have appreciated that we are taking a proper, sensible, calm look—through the commission on which my noble friend sits—at how the act is working in practice, and we are taking to Europe some very practical proposals for how to get the court working more efficiently and thus more respected. If we get away from all the showbiz of this, and get down to what the Government are actually doing, you will find that it is something that should have the approval of colleagues on all sides of this House.
First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
Lord McNally Excerpts(12 years, 7 months ago)
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Lord McNally
That the draft order laid before the House on 12 July be approved.
Relevant Document: 27th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the draft order prescribes the fee to be paid by a person who appeals to the Immigration and Asylum Chamber of the First-tier Tribunal. The draft order also sets out the situations in which a person will be exempt from paying a fee and where a fee may be deferred, reduced, remitted or refunded. To facilitate the new fees regime, changes will be required to the Asylum and Immigration Tribunal (Procedure) Rules 2005. If the draft order is agreed, changes to those procedure rules will be made in another instrument.
At present, the cost of administering the asylum and immigration appeals system is met chiefly by the UK taxpayer via the Ministry of Justice vote, although a contribution is made from visa application fees charged by the UK Border Agency. In 2010-11 the total cost of the system was about £108 million. In that year the taxpayer paid approximately 87 per cent of that cost, with the contribution from visa fees amounting to £14 million. It is essential that we continue to provide effective access to an independent, cost-effective tribunal for those challenging decisions made by the UK Border Agency. However, 60 per cent of appeals to the tribunal are refused. The Government find it difficult to justify why the UK taxpayer should continue to fund almost the entirety of the cost of failed appeals, many of which are wholly without merit, and believe that where tribunal users can afford to make a contribution they should do so.
We are not the first to consider this. Noble Lords may be aware that a consultation paper in 2009 on immigration and visa applications by the previous Administration asked whether users of the tribunal ought to make a contribution to its costs; respondents agreed that they should. In addition, charging for immigration appeals was one of the ideas submitted in response to the Government’s spending challenge in 2010 and identified as one of the suggestions that would be taken forward by the Prime Minister in August 2010. We consulted on the proposals which form the basis of the order in October 2010 and we have made a number of important changes to them in light of the responses to that consultation. I shall explain what those changes are shortly, but before I do I will set out the types of appeal that will generally attract a fee and the range of exemptions that will apply.
Appeals which will, in principle, attract a fee are family visit visa appeals from people refused a visa to enter the UK on a temporary basis to visit a family member; managed migration or in-country immigration appeals from those already in the UK seeking to extend or change the terms of their stay in the UK; entry clearance officer appeals, which are a large range of different appeal types from individuals overseas who have applied for permission to come to the United Kingdom, either permanently or temporarily, but have had their applications refused because they did not meet the requirements of the Immigration Rules; and asylum appeals from people who have been refused asylum.
As for the actual fee levels, where an appellant indicates that they want an oral hearing, the fee will be £140. Where an appellant indicates that they do not require an oral hearing and an appeal can be decided on the basis of the papers alone, the appellant will be required to pay £80. The order includes provision for a wide array of remissions and exemptions. Appeals brought against decisions where action is initiated by the state should, in our view, be exempt from paying the fee. These will include appeals such as deportation, deprivation of citizenship or revocation of indefinite leave to remain. We will also not charge for appeals where the appellant is in the detained fast-track process. Anyone in receipt of legal aid or asylum support will also be exempt.
Some of your Lordships may be surprised that we are seeking to charge for asylum appeals at all. If so, I can reassure them that most of those refused asylum will benefit from exemptions under the order. Where they do not, the hearing of their appeals will go ahead anyway, whether or not a fee is received. Where such an appellant remains liable to pay a fee it is hoped that it will be paid in due course, and it will remain open to the Lord Chancellor to seek to enforce payment through the usual civil enforcement procedures should it not be paid. However, every appeal from a failed asylum seeker, whether rich or poor, will be heard whether or not the fee is paid. There is thus no question of disadvantaging asylum seekers by the implementation of these proposals. There is also a power for the Lord Chancellor to reduce or remit fees if someone does not fall into any of the proposed exemption categories and can demonstrate that there are exceptional circumstances why they cannot, or ought not, pay the fee. Overall, I am confident that the introduction of the fees should not prevent access to justice.
Your Lordships will also be aware that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently being considered in the other place, includes proposals to make changes to the availability of legal aid for those making appeals to the tribunal and others. We made clear in our consultation paper on fees and in the response to that consultation, and I do so now again, that it is our intention to bring forward in due course a revised remissions and exemptions scheme in respect of liability to pay fees in the tribunal to take account of the proposed changes to legal aid. The exemptions and remissions set out in the instrument before your Lordships tonight, therefore, in so far as they provide for the remission of fees by reference to the receipt of legal aid, are intended to apply only under the current legal aid arrangements and will not apply under any future legal aid regime, in respect of which we will bring forward alternative proposals for the remission and exemption of fees in due course.
As I have indicated, the Government carefully considered the views expressed by those who responded to the consultation, including the Administrative Justice and Tribunals Council. This has led to a number of significant changes to the draft order and the proposed changes to the procedure rules. Foremost of these is the power for the tribunal to make an award of costs against the UK Border Agency to successful appellants up to the amount of any fee paid. This will allow an appellant to recoup their appeal fee where a clear mistake has been made by the UK Border Agency. It is also envisaged that the prospect of costs being awarded where mistakes are made will encourage the UK Border Agency to improve the quality of its initial decision-making to minimise such a financial penalty. That power will be included in the procedure rules rather than the order before the House today.
The other main change to the proposals originally consulted on is the retraction of plans to charge a fee in the Upper Tribunal. We accept that further appraisal of that option is required and the Government do not plan to introduce fees for onward appeals to the Upper Tribunal at this time.
This Government are fully committed to ensuring that all tribunals remain accessible and provide a high-quality service for their users. Whether appellants are bringing appeals from within the UK or from overseas, the introduction of fees does not affect that commitment. The draft order and the consequent changes to the procedure rules seek to redress what the Government consider to be an imbalance in the way that the tribunal is funded. They make provision to require users of the tribunal to make a contribution towards the cost of the service they are using, and to reduce the financial burden on the UK taxpayer without restricting access to justice. I commend the draft order to the House and I beg to move.
Lord McNally
My Lords, I am grateful for the contributions to this debate. They do not entirely surprise me. What the Government are trying to do is difficult, and it is always easier to spend taxpayers’ money. I understand what colleagues are saying, but I think that they are putting slightly too much burden on their fears and on warnings. We are talking about asking people to pay 25 per cent of the charge for a process which—as has been acknowledged—will have already carried a fee of some £900. This is not a case of the state casually dropping on innocent citizens and prosecuting them. This is about people who are applying to enter our country, who are paying a fee for a process and where, at a second stage of that process—the tribunal level—we are suggesting a very modest fee.
I fully accept that we are going to have a much more fundamental debate when the Legal Aid, Sentencing and Punishment of Offenders Bill reaches us, and I will be very happy to take on that debate. We are suggesting that there are certain areas of legal aid, which have been covered, where my right honourable friend the Lord Chancellor and I believe that it is not the business of the taxpayer to finance the legal profession to participate in these activities. Indeed, at the tribunal level we believe that the emphasis should be put on a much less legalistic approach, but that may be a debate for another day.
I do not think that this is a horrendous charge. It will benefit the taxpayer because we expect the savings and receipts to benefit the budget by £16 million to £20 million a year. Again, this must be seen in the context of dealing with almost 200,000 appeals. Whether the charges will have an impact on a falling-off of appeals will have to be seen, but I suspect that it will; it certainly may have a small deterrent effect on non-meritorious appeals. But if one looks at how my right honourable friend the Lord Chancellor has gone out of his way to create as broad as possible a range of exemptions and inclusions—the noble Lord, Lord Bach, was good enough to acknowledge that—I do not think that this is the harsh and unfeeling policy that has been suggested.
The noble Lord, Lord Avebury, asked whether we had consulted the UNHCR. Yes, we did, as part of the full consultation. Perhaps not surprisingly the commission did express concerns about the charging of refugees and others, but there was no suggestion that in so doing we were breaking any of our international obligations. I am sure that we will have a debate on other matters because we are looking to reduce the amount of money that the taxpayer contributes to a range of legal activities, and in this case we are asking those who apply to enter our country—it has been conceded that they will have already paid a considerable fee up front—if they have to appeal against a decision, to pay a modest fee in response. I do not think that that is the kind of horrible policy suggested by my noble friend Lord Thomas of Gresford. It is one of those necessary activities we are undertaking partly to reset the system that we inherited and partly to ask those who make use of the system to make a modest contribution.
Future changes will be affected in part by the decisions of the Bill before the House, and I have already explained how that will make a further impact on tribunal work. The noble Lord, Lord Bach, asked about the discrepancies in the success rate of appeals supported by legal aid versus those that are not. I understand that the figures are not published by the Ministry of Justice, but we will investigate them and write to the noble Lord. On our plans for future fee levels, the Government have committed themselves to regular reviews, the first of which will take place in 2012. I think that I have covered most of the questions that were raised by noble Lords, but if I have not, I will certainly write in clarification.
We are not looking at this as a draconian hurdle that makes it impossible for people to appeal; quite the contrary. How we have set up the structure and the exemptions we give show that our principal aim is to retain the concept of access to justice. People wishing to challenge a decision of the UK Border Agency will continue to have access to an independent tribunal which is part of a justice system that is respected throughout the world. However, the system costs money and the Government believe that taxpayers should not have to shoulder the entire burden. A proportion of the costs is already raised from visa fees, but we are reluctant to increase these further for fear of discouraging applications from essential workers, students and others, most of whom will never make use of the appeal system. In order to ensure that no one is denied access to justice, we are putting in place a system of exemptions and remissions, and setting the fees at very modest levels. We have also undertaken to keep the impact of introducing fees under review, and to consult on and bring forward revised exemptions and remissions proposals to replace the pegging of remissions to legal aid, should its availability be reduced.
Finally, in response to the representations made about consultation, the order provides that the tribunal may instruct UKBA to refund the fees of successful appellants, thus ensuring that they do not have to pay to correct the errors of the agency. That in itself will incentivise the agency to improve its initial decision-making—I take the point made by my noble friend Lord Avebury about that—and will reduce the rate of successful appeals to the tribunal. I note what has been said and that we will be returning with vigour to some of these issues when the LASPO Bill comes before the House. But, overall, I believe that this is a carefully measured proposal that will reduce government expenditure at a time when this is vital to our economic well-being, while maintaining access to an important means of challenging the decisions of the Executive in the immigration field. In that spirit, I commend this draft order to the House.
House of Lords: Reform
Lord McNally Excerpts(12 years, 7 months ago)
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Lord Grocott
To ask Her Majesty’s Government whether they intend that a reformed House of Lords would, like the House of Commons, vote on any future deployment of troops in conflicts overseas.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, since the 2003 Iraq conflict there has been a convention to debate military intervention in the House of Commons. This Government have been clear that we will abide by that convention. The Government are currently exploring options for formalising the convention, including the future role of the House of Lords in such matters.
Lord Grocott
With respect, my Lords, this question goes to the heart of the issues of the powers of a revised House of Lords and the relationship between the two Houses. I put these simple questions to the Minister: if Members of the Commons were allowed to vote on matters of war and peace and senators in the newly elected senate were not, how on earth would that be explained and justified? If, on the other hand, the Commons and the Lords could both vote on matters of war and peace, what on earth would happen if one voted for war and the other for peace? I put it to the Minister that if the resources of the Deputy Prime Minister cannot even come up with an attempt to answer these fundamental questions about a reformed second Chamber, they should tear up the draft Bill and go back to the drawing board.
Lord McNally
The noble Lord, Lord Grocott, continues his search for the silver bullet that is going to shoot down Lords reform. The fact is that we are approaching the matter of war powers rather more seriously. Of course there is the matter of the power of the House of Commons, and we are considering carefully how such legislation would be couched. When the reformed House of Lords comes into being, as has been made clear by the Cunningham committee, the conventions between the two Houses will be up for re-examination but the conventions of the two Houses will still be in place. The Government have made it quite clear that it will be the House of Lords—sorry, the House of Commons, that will have the—[Laughter.] War powers are a rather serious matter. If the noble Lord would address it as such, instead of as one of his regular “catch them” questions, we could well debate it.
Lord Elton
My Lords, my noble friend is mistaken in thinking that this is a flippant approach simply because it comes from somebody with a known record of trying to sabotage reform. Surely reform is intended to be democratic and representative. This House will not be representative unless it can represent those who elect it in all respects. This is the most important respect that is likely to come before this House. How can it be justified as a democratic reform if the House is to be silenced on this matter? If it is not to be silenced on the matter, the problem posed by the noble Lord, Lord Grocott, persists. Deadlock between the Houses would not only lead to uncertainty in the future but sap the morale of those who were eventually engaged in any conflict.
Lord McNally
My noble friend’s last point is exactly why the Government are being very careful in thinking about just how these matters should be put into law and how Parliament should discuss them. However, the point raised by the noble Lord, Lord Grocott, is dealt with by the CRAG Act. Treaties will be debated in both Houses and can be voted on by both Houses, but the CRAG Act makes it quite clear that the view of the House of Commons would prevail in such matters. That is one precedent that we could look at but, as I say, let us wait.
Lord Kakkar
My Lords, if a future election to the other place were to result in no party being able to form a Government, alone or in coalition, do the coalition Government’s proposals for abolition of your Lordships’ House offer a constitutional impediment to the leader of the party that enjoys the confidence of the elected second Chamber being invited to form a Government?
Lord McNally
Absolutely and clearly—again, the conventions are clear. The statement in the White Paper is quite clear. It is the person and party who command the confidence of the House of Commons that will form a Government in any future circumstances. That will remain.
Baroness Farrington of Ribbleton
My Lords, the Minister has cast aspersions on the seriousness of my noble friend’s Question. I am not alone in your Lordships’ House in believing that the Government should have looked at this matter first, rather than produce a Bill to change things with a plus ça change attitude towards the future role of this House or an elected second Chamber. Why will the Government not go away and do their job properly? Before the noble Lord attacks me, I am one of the Members in favour of reform. However, I do not want it done back to front, with the Government unravelling the system and then discovering that they have to work out how it will work in the future. That is the wrong way round.
Lord McNally
That is precisely why the proposals put forward by my right honourable friend the Deputy Prime Minister are the most thorough, the most consulted on and the most open proposals for reform of this House that have ever gone before Parliament. Again, I draw the attention of the House to the fact that war powers—and the right of Parliament to debate them—are a very serious matter, for which the Government have promised to bring forward proposals. Again, I put forward the very clear statement in the White Paper: the conventions and powers of the House of Commons will remain supreme. That would be the case for war powers, as for any others.
Lord Tyler
My Lords, my noble friend will recall that two Joint Committees looked at these issues with great care in the previous Parliament. I served on both of them. The Government of the day then accepted the advice of those committees. Would my noble friend like to speculate on why the noble Lord, Lord Grocott, raises this issue now, rather than exerting his influence in that Government?
Lord McNally
No, I prefer to look forward on this matter. We have given the noble Lord, Lord Richard, a task. If the noble Lord, Lord Grocott, wants to write to the noble Lord, Lord Richard, with any doubts or concerns he has about war powers, particularly after the Government have made their statement, so be it. Of course, it is legitimate to address one of the regular Questions asked by the noble Lord, Lord Grocott, on Lords reform, but I hope that the House will debate the war powers issue with due seriousness when the Government come through with proposals. There are a lot of examples around the world of parliaments that have taken war powers which have made it virtually impossible for those countries to deploy forces. At the other end of the scale, we have the example of Iraq, when Parliament felt that it had not been fully consulted. The Government are looking at this very carefully and seriously and will bring forward proposals in due course.