First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
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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
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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.
Young People: Politics
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what proposals they have to encourage more young people to engage with democratic institutions.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government want to encourage everyone, young or old, to engage in the democratic process. We all have a role to play. On voter registration, for example, the Government are exploring how online services might be deployed, and across government we are looking at ways of promoting consultations and information on youth-friendly media.
Lord Roberts of Llandudno
I thank the Minister for that reply. Does he agree that it is essential that young people feel that their community belongs to them, so that they have a sense of ownership and a voice in shaping that community? In order to achieve this engagement in their communities—and I declare an interest as patron of the youth for democracy campaign, Bite the Ballot—could they not take leadership courses and engage in voter registration there? Young people could have far greater influence than older people on the youth element.
Lord McNally
My Lords, I will take back to the Cabinet Office the suggestion of specifically recruiting young people to encourage other young people to register. The Cabinet Office has been consulting with youth groups to develop detailed operational policy for individual electoral registration, including ways in which to tackle under-registration. Additionally, the independent Electoral Commission runs public awareness campaigns to encourage voter registration ahead of all major election events.
Lord Beecham
My Lords, can the Minister explain how the Localism Bill’s abolition of the duty to promote democracy will encourage more young people, or indeed any people, to engage with democratic institutions?
Lord McNally
I am not sure whether that particular part of the Localism Bill will have an impact in the way in which the noble Lord implies. As I have just indicated, the Government are taking a great deal of care and attention, particularly about individual registration. Going back to the original Question, we are taking particular care to try to ensure that young people register to vote.
Baroness Howe of Idlicote
Will the Minister assure me that there will be young apprenticeships available for young people which will in fact enable them to give some of their time to the sort of projects suggested? I think that there is rather a dearth in the number of young apprenticeships available for young people.
Lord McNally
On the contrary, my Lords, one of the things I think this Government can take pride in is the funds that they have made available to extend apprenticeships. I think that over the months ahead we will see apprenticeships increasing in exactly the kind of areas in which the noble Baroness has asked for them.
Baroness Knight of Collingtree
My Lords, does my noble friend agree that it would be appropriate to pay tribute to the former Speaker of this House, who initiated and carried through a very wide programme of sending Members of this House to talk to schools, colleges and places where there are very many young people? Does he not agree that she did a great job in that regard?
Lord McNally
Indeed, and if I may say so, it is almost the mirror image of what my noble friend suggested in his opening question. The previous Speaker’s outreach programme allowed Members full in years and experience to go and speak to young audiences, not only about this House, but about participation in politics. As one who participated in that programme, I must say that they were most enjoyable meetings, and since they were usually compulsory for the school that was hosting them they were better attended than some political meetings I have addressed.
Baroness Royall of Blaisdon
My Lords, there was an important democratic initiative earlier this week, with the publication by the Boundary Commission of its initial proposals for new parliamentary constituencies. Members of this House, all of whom are young at heart, have a close, appropriate and legitimate interest in these matters. Can the Minister inform the House why this material has not been made available for all Members of your Lordships’ House through the Printed Paper Office in the normal way, and can he give a clear assurance to the House that this disparagement of this House will be corrected immediately and certainly before the House rises tomorrow?
Lord McNally
I have heard this bubbling away on the other Benches. I will certainly look into it. I know of no reason why it is not available in the Printed Paper Office. I assumed that it was available immediately. Indeed, if I may say, one of the things that I would like to see is legislation in this House that would make every Member of this House interested in boundaries and elections.
Lord Phillips of Sudbury
My Lords, I first declare an interest as the founder and president of the Citizenship Foundation, which works with over half the state’s schools in trying to educate the citizens of tomorrow. It is at present part of the Government’s policy—albeit it is out to consultation—to remove citizenship as a compulsory component of our education. Would he not accept that today’s democracy is fiendishly complicated; the output of Parliament is unbelievably complicated; and if we really want young people—particularly less self-confident and less able young people—to identify with democracy, take an interest in it and own it, we cannot afford at this point of all times to abandon citizenship?
Lord McNally
I pay tribute to my noble friend’s commitment to the concept of the teaching of citizenship and note what he says about the importance of keeping it on the curriculum. As he says, the matter is out for consultation, and I suggest that the Citizenship Foundation put in some weighty evidence on the matter. I am sure that it will.
Arrangement of Business
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, before we move to the Welfare Reform Bill, I point out that 51 speakers are signed up for the Second Reading. If Back-Bench contributions are kept to seven minutes, the House should be able to rise this evening at around the target of 10 pm.
Prisoners: Sanitation
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Lord Ramsbotham
To ask Her Majesty’s Government what action they are taking to speed up the ending of “slopping out” in prisons in England and Wales.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the use of slopping out as the primary method of prisoner sanitation ended in 1996. Currently, less than 3 per cent of the prison population are required to use unacceptable alternatives to in-cell sanitation. All new build has in-cell sanitation and, in some cases, in-cell showering facilities.
Lord Ramsbotham
My Lords, I thank the Minister for that reply. In September 1991, the then Home Secretary, the noble Lord, Lord Baker of Dorking, assured everyone, at paragraph 6.8 of his White Paper Custody, Care and Justice, that,
“no prisoner will have to endure the inhumane and degrading practice of slopping out after the end of 1994”.
The announcement made by the Prisons Minister Ann Widdecombe in 1996, which the Minister quoted, was premature because there have been, and are, cases of slopping out. The Scottish Prisons Service has admitted that the practice breaches human rights. Recently, the Scottish Court of Session has agreed that prisoners can sue for damages for being made to slop out. Might the prospect of literally thousands of British prisoners taking the same route encourage the Government to fulfil the assurance given 20 years ago that slopping out would end 15 years ago?
Lord McNally
No, my Lords. The figures I have given are accurate: less than 3 per cent of prisoners have facilities that do not comprise in-cell sanitation. The main alternative is electronic unlocking, which is not a perfect system but is certainly not degrading in the terms that the noble Lord suggested. As far as we are concerned, it is compliant with humanitarian and human rights legislation. The truth is that we have a prison estate in which it is extremely difficult to meet the full commitment to in-cell sanitation. Therefore, I cannot be enthusiastic at present about promising a rapid reduction in the numbers. As I say, as new build comes on stream, there will be more in-cell sanitation, but that will not happen quickly. We are down to almost an irreducible minimum whereby electronic unlocking is the alternative to in-cell sanitation.
Baroness Linklater of Butterstone
My Lords, given the Scottish experience, what provision is being made in England and Wales to prevent a similar situation developing here, where, in round numbers, 1,973 prison places are still affected by this disgusting situation?
Lord McNally
It is not helpful to suggest that it is disgusting to ring a bell to open the cell door in order to use the toilet. As my noble friend said, that applies to fewer than 2,000 prisoners in a prison estate of nearly 88,000. They have to do that because in certain prisons it is physically impossible to put in the facilities that would be desirable.
Baroness Howe of Idlicote
The independent monitoring board makes no mention of women. Will the Minister confirm that this grossly offensive practice—I stress those words—of slopping out does not apply in women’s prisons? If that is so, does not equal treatment mean that this should be an equally unacceptable practice in all men’s prisons?
Lord McNally
It is an unacceptable practice. I understand that the only time people are asked to use a removable bucket to slop out is if there is a breakdown in the system. I am assured that in no part of the prison estate do women have facilities other than in-cell facilities.
Baroness Knight of Collingtree
My Lords, could we be told who has to do this job, when it is necessary for it to be done, if prisoners do not do it?
Lord McNally
I am told that when it is necessary to carry out some slopping out it is done by a unit of prisoners. Individuals are not asked to slop out but, as happens in many prisons, it is part of the cleaning or other duties that a group is asked to do. It is done by prisoners. But I again emphasise that where there is in-cell provision and electronic provision, slopping out will take place only when there is a mechanical breakdown of one or other of the systems. When that happens I am told that most prisons use a cleaning squad of prisoners to carry out that job.
The Earl of Listowel
My Lords, does the Minister agree that reducing the prison population would be one way of tackling this problem? Reducing the adult prison population would be helpful in addressing this problem. Will he consider the success of the Youth Justice Board which, in the past three years, while the adult prison population has increased, has decreased the child prison population by 30 per cent? Rather than abolishing the Youth Justice Board, will he consider whether that model of governance might be applied to the adult estate?
Lord McNally
We will have learnt a lot that is beneficial from the role of the Youth Justice Board. Indeed, we will take those lessons to the Ministry of Justice and continue to work along those lines with the youth system. The noble Earl is right and that is why my right honourable friend the Lord Chancellor has drawn attention to the central part in government policy of our programme of rehabilitation. We have far too many of the wrong people within our prison system. If we could reduce prison numbers it would be a win-win situation for taxpayers and a way of getting more civilised accommodation within the prison estate.
Transparency International: Corruption Perceptions Index
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are committed to transparency, accountability and stamping out corruption across the board. I note that the UK has slipped down the corruption perceptions index. However, I am confident that recent legislation, such as the Bribery Act, together with our active enforcement record, will improve the UK’s position over the coming year.
Lord Harrison
My Lords, given our relatively low position in terms of public perception of corruption—we are 12th within the European Union and 20th within the world—how can the Government redouble their efforts to ensure that we satisfy all aspects of the UN Convention against Corruption? Secondly, would the Minister look at some aspects of what I call low-level corruption in this country, such as the failure to observe proper appointment procedures in jobs, and so forth, to help to improve our position over the coming years and fight against the social immobility that is sometimes the cause of our failure to prosper economically?
Lord McNally
My Lords, on that last point, which is slightly wide of the Question but nevertheless very relevant, the noble Lord, Lord Harrison, will have noted that my right honourable friend the Deputy Prime Minister recently initiated a public debate on this very problem of social mobility or immobility. I sometimes think that if we had had the social immobility that we have today I might not have got very far out of Blackpool.
On the broader issue, I understand the concerns about the perceptions, but it is a perception index that covered a period when there was a good deal of coverage of public life in this country—the problems with parliamentary expenses, et cetera. The Bribery Act and the actions taken by the Government to sharpen up the pursuit of corruption and economic crime will feed through into that index. Indeed, the OECD Secretary-General described the Bribery Act as reflecting the best international practice and praised the UK for being an active enforcer of bribery offences.
Lord Goodhart
My Lords, Transparency International UK, of which I am a member, published in June this year a document called Corruption in the United Kingdom. It concluded that corruption is a greater problem than has been recognised and is being recognised by Governments. Have the present Government considered that document and have they got the Serious Fraud Office adequately into the picture?
Lord McNally
Yes, my Lords, we have studied the document, and we keep close contact with Transparency International, which does a very effective job of keeping these matters before the public and before Governments. However, in this country there are two dangers. One is to say, “Oh, we don’t need to do anything because we are actually the ones who obey all the laws and it’s all the others who are corrupt”, and the other is to believe that we are somehow burdened down with corruption. Both extremes are wrong. There is corruption in this country, as in all countries, but it is not left untouched. As I say, the Bribery Act is in place, and my noble friend referred to the SFO, which is now playing an important part in the new structure of crime prevention set up by the Home Secretary. In consultation with law officers and other relevant colleagues, the Home Secretary is currently considering options for delivering the Government’s commitment to improve capability to tackle economic crime. The work of the Serious Fraud Office will play a key part in that strategy.
Lord Bach
My Lords, I am delighted that the Minister is praising the Bribery Act and using it in defence of the present position. He will of course recognise that it was an Act passed under a Labour Government, with support from all over the House. The worry is that it was not implemented until 1 July this year. My first question is why it took so long to implement and my second, bearing in mind that it has only been in force since 1 July, is whether there are any messages from the trenches. Is it working, or not?
Lord McNally
Of course it was, and all parts of the House can take credit for the fact that the Bribery Act was put on the statute book. The reason for the pause was for consultation and education, so that the Act was seen for what it is—a very useful piece of anti-corruption legislation. When we first came into office, there were lots of rumours going round that if you took a client out for a drink, for example, you would be charged under the Bribery Act, and various bodies, eager to make an honest penny, were offering consultancies to companies on how to avoid these various traps and pitfalls. So in consultation with the CBI, small business and organisations across the board, we worked very hard on guidance, which we published. The message from the trenches is that the Bribery Act is in place, it is effective, and if anybody is worried about its implications, the key thing to do is not to bribe.
Cohabiting: Law Commission Report
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Lord Marks of Henley-on-Thames
My Lords, while declaring an interest as a barrister undertaking some family work, I beg leave to ask the Question standing in my name on the Order Paper.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, as has been confirmed in a Written Ministerial Statement, the Government do not intend to take forward the Law Commission’s recommendations for reform of the cohabitation law in this parliamentary term.
Lord Marks of Henley-on-Thames
My Lords, I thank the Minister for that Answer, although I confess it was disappointing. Does he nevertheless agree that it is unjust, as the slightly wider Bill of the noble Lord, Lord Lester, recognised some time ago, that cohabitants who separate, no matter how long they have lived together and even if they have children, cannot in England apply to the courts for financial relief to compensate for careers abandoned, time spent looking after children or contributions to their cohabitants’ success, and if so, is it not surely now time to implement the Law Commission’s sensible and limited scheme, which would not undermine marriage or civil partnership and which has been widely applauded by the judiciary and the family professions?
Lord McNally
My Lords, first, I pay tribute to the Law Commission for its work, not just on this matter but in general. I am a very firm supporter of the Law Commission and the work it does, and I know that this House has played an important role in bringing Law Commission recommendations into law. However, the Government have decided not to implement the Law Commission’s scheme in this parliamentary term, because major changes to family legal aid are being implemented next year, and further reforms of the family justice system are also on the horizon following the final report of the family justice review, which will be published in October. We do not believe it would be sensible to seek to implement further changes in the law governing cohabiting couples during this period.
Baroness Deech
My Lords, I put these points to the Minister on the basis of the hundreds of letters I have had from members of the public after lecturing on this subject, which go along these lines. First, people live together precisely because they do not want to be married and have that law applied to them, and they would see a cohabitation law as a sort of forced marriage—some of them said that they would fail to commit, or fail to stay, if the law were changed. Secondly, the financial relief law is so bad, so uncertain and so expensive that the assets of the couple would be eaten up and in the end the only beneficiaries, given that there will be no legal aid, might be the lawyers.
Lord McNally
My Lords, I think that intervention suggests that it is right for the Government in this case to err on the side of prudence.
Lord Tebbit
My Lords, would not the most sensible, the cheapest and the most effective way be for the cohabitants concerned to marry?
Lord McNally
I think in other circumstances the noble Lord is fairly outspoken against forced marriages.
Lord Lester of Herne Hill
Does the Minister agree that where a man leaves his common-law wife with children, it is quite wrong that the state should have to come to the rescue without any possibility of getting the man to pay? When he and his colleagues reconsider this matter, as I hope they will, will they have regard to the experiment in Scotland and the recent legislation in Ireland where, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, some perfectly sensible solutions have been included in the Republic as well as in Scotland?
Lord McNally
My Lords, when the previous Administration opposed my noble friend’s Private Member’s Bill on this they said that they were going to wait for research on the Scottish experience. We have looked at some of the preliminary outcomes of that research without seeing anything conclusive to persuade us to move more quickly on this issue. My noble friend makes the point, however, as do the Law Commission and many others, that there are confusions and injustices as the law stands. We have not ruled out the Law Commission’s recommendations for all time; we have simply decided that we are not going to do that during this Parliament.
Baroness Scotland of Asthal
My Lords, can the Minister give us a little more detail about why the Government did not find the Scottish research persuasive? Can he also say what the basis of any new review would be if the Government were not minded to take into account the very detailed work that the Law Commission was asked to undertake—it has now taken that into account—and why the Government think that the separation of the two issues is possible?
Lord McNally
First, the previous Administration did not proceed on this issue when they had the power to do so, although my noble friend Lord Lester had raised it. The Scottish scheme is different in various respects to the proposals for England and Wales made by the Law Commission, and the report on the Scottish scheme, which is only preliminary, acknowledged that its findings necessarily provide only an early-days impression at a time when there is relatively little reported case law under the 2000 Act, with judges and practitioners still feeling their way. The conclusion in the report is that the evidence to date in Scotland means that a similar scheme in England and Wales is unlikely to place significant additional demands on the courts system. The main message to concentrate on is that a significant period of change is due in the family justice system, which we are using to consider legislation in general. We have taken the Scottish research on board, but it is, as I say, rather narrow, very early and not enough to persuade us that we should implement the Law Commission’s recommendations now.
The Lord Bishop of Wakefield
My Lords, the noble Lord, Lord Tebbit, will be glad to know that the Church of England supports marriage. It is promoting weddings through expanding the choice of churches available to couples and through its weddings project. In our earlier submission to the Law Commission, we recognised that the welfare of children and the hardship and vulnerability of people whose relationships are not based on marriage ought to be addressed through legal rights. We stand by that, but could we be reassured that the Government will continue to promote the institution of marriage?
Lord McNally
One goes out on to very thin ice. I am not sure that it is for a Government to promote marriage any more than it is for them to promote any other forms of relationship.
Lord McNally
They say that Elizabeth Taylor was in favour of marriage, because she got married eight times. I understand where the right reverend Prelate is coming from. Of course, the Government try to create the framework within which the relationship of marriage is sustained. These issues are, frankly, intensely personal, and I do not think one should try to give a government or a ministerial answer to them. We live our lives, and we should get on with doing so.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011
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Lord McNally
That the draft Orders and Rules laid before the House on 16 May and 7 June be approved.
Relevant Documents: 23rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 5 July.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House, I beg to move the four Motions standing in my name on the Order Paper en bloc.
Lord Thomas of Gresford
My Lords, in relation to the Rehabilitation of Offenders Act order, the Minister will recall that when we discussed the matter in Grand Committee we raised very considerable difficulties about owners and managers not having clearance with regard to convictions. Can my noble friend assist with the worries raised at that time?
Lord McNally
My Lords, my noble friend is referring to the new alternative business structures for legal firms. It is true that both he and my noble friend Lord Hunt raised these points in Committee, and I agreed to take the matter back to ministerial colleagues if they would allow this order to proceed. I have done so, and Ministers have agreed that consideration and a decision in respect of the business case for the inclusion in the exceptions order of owners and managers of alternative business structures should be made as soon as possible. In the event that the Ministers agree that any addition should be made to the exceptions orders, I assure Members that this work will be expedited and an amendment will be prepared as a matter of urgency. On that basis, I hope that the House will allow the order to go through.
Legal Aid
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Lord Harrison
To ask Her Majesty’s Government how their proposals to reform legal aid in England and Wales will impact on the welfare and rights of vulnerable children and young people.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we published impact assessments and equality impact assessments alongside the response to consultation. These lay out our best estimates of the impact of the reforms.
Lord Harrison
Does the Minister acknowledge that the likely rise in legally unaided, go-it-alone litigants in family cases will introduce greater delays in getting justice, as well as uncertain outcomes? In respect of Section 37 family cases, does he recognise that there will be no legal aid for interim court orders when a child is removed from a family? Finally, will he look again at the proposal to deny legal aid in domestic abduction cases, which are often very complicated, whereas, rightly, we are retaining it for international abduction cases?
Lord McNally
My Lords, I will certainly take back the points raised by the noble Lord on child cases. As far as possible, our intention is that, where children are involved, legal aid will still be provided.
On the broader point of impact, it is partly our intention to divert family and welfare cases away from outright litigation towards mediation and less confrontational ways of settling disputes. That may—and, we hope, will—change the pattern of demand in this area. That is the basis on which the Government are bringing forward their proposals. However, on the issues raised by the noble Lord, I will come back to him.
Lord Thomas of Gresford
Does the Minister agree that applications for legal aid in exceptional circumstances are likely to increase considerably? How does he propose to handle it? Does he not think that a court would be better able to assess exceptional circumstances than a Minister and his civil servants?
Lord McNally
It is an interesting idea. As this legislation goes through both Houses, I am sure that suggestions of that kind will be made. At the moment, our proposal is that this matter will be in the hands of Ministers.
Baroness Howarth of Breckland
My Lords, I declare an interest as the chair of the children and family court system. I welcome the Minister’s information that there will be legal aid in children’s cases, but does he mean that this will be in both private and public law? Did the impact assessments carried out during the consultation process include a definitive assessment in relation to children? If not, could that be carried out?
Lord McNally
The impact assessment was consistent with our equality duties which included the duty to have due regard to the impact of the legislation on groups of all ages. This is detailed in the equality impact assessment. I understand that legal aid is in public law. If I am wrong on that, I shall write to the noble Baroness and place a copy of my reply in the House Library.
Lord Newton of Braintree
My Lords, I am sorry to get ahead of the right reverend Prelate. There are least three pieces of major legislation currently going around that have an impact, as is perceived, on vulnerable people, including children, disabled people and others. I refer to the Welfare Reform Bill, this legal aid legislation and the housing provisions of the Localism Bill. Has anyone carried out an overall impact assessment of these pieces of legislation on the people we are concerned about? In other words, is this joined-up government?
Lord McNally
I believe it is joined-up government but it is set against the reality that all departments are faced with severe budget restrictions. I have never denied from the Dispatch Box that if you cut budgets in areas that are helping vulnerable people there will be impacts on the aid available to them. In my department and other departments we are trying to focus the scope of what we are doing so that we target what is available to the most vulnerable and needy.
Lord Bach
My Lords, can the Minister confirm that, as a direct result of Her Majesty’s Government’s proposals in the Bill that is now in another place, young children who have been severely injured will no longer be able to get legal aid to pursue their claims for clinical negligence? Is that not an outrage in a civilised society? How do the Government justify this denial of access to justice?
Lord McNally
The Government’s assessment is that in most clinical negligence cases it will be possible to carry actions forward through arrangements with solicitors willing to take the cases. Where it is not, the special legal aid fund will kick in for cases not covered by such arrangements. It is not the case that people will not have access to justice in clinical negligence cases; they will continue to have access to justice. We have taken this tough decision because we believe that there are alternative ways of gaining access to justice, with the safety net of the special fund, which will be in the control of my right honourable friend the Lord Chancellor.
The Lord Bishop of Ripon and Leeds
Will the Minister confirm that among those most affected by this legislation will be children fighting deportation, including those who have been in this country for many years and have no knowledge of the country where they were born? Would not such an effect be contrary to Article 8 of the UN Convention on the Rights of the Child?
Lord McNally
All the proposals in the legislation are fully compliant with the Human Rights Act. As I have said before, in cases where children are involved our intention is, where possible, to provide legal aid. The problem is that we are discussing the proposals against a background of questions to which we will know the answer only when the impact of the legislation is seen. That is why we have committed to keeping the impact of the legislation, when it is in place, fully under review.
Personal Injury Lawyers
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Lord Sheikh
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I should like to declare that I am the chairman of an insurance broking and financial services organisation.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are sympathetic to the idea of a ban on referral fees and are looking at how to tackle the issue as part of our wider reforms, and at how we could do so in a way that would be effective.
Lord Sheikh
My Lords, I thank my noble friend the Minister for that reply. Lord Justice Jackson’s review of civil litigation costs prescribed a reduction in fixed costs and hourly rates for solicitors, as well as a ban on referral fees. Does the Minister agree with this position, and will he indicate whether the issue will be addressed in the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the House of Commons?
Lord McNally
Whether the question of referral fees will find its way into the Bill is a matter for the study that we are undertaking into ways that this could be implemented. However, we are trying to bring forward a range of the Jackson proposals in that Bill. As to referral fees, as my noble friend will be aware, the Legal Services Board and the Transport Select Committee advised a solution in terms of transparency. Lord Justice Jackson recommended a ban and, as I indicated, the Government are sympathetic to the idea of a ban.
Lord Carlile of Berriew
My Lords, in addition to that, will my noble friend confirm—as he indicated to me in a Written Answer to me on 23 June—that referral fees or kick-back fees in criminal cases are illegal, corrupt and should not be undertaken in any case by any lawyer?
Lord McNally
If that is what I said in a Written Answer it must be—[Laughter.] Even more so, it just sounds right.
Lord McFall of Alcluith
My Lords, the industry has called this its “dirty little secret”. Given that over the past 10 years personal injury claim payouts have doubled from £7 billion to £14 billion while road accidents have largely reduced over that period, is this not a clear case of market failure, and the Government should report this to the OFT to look at this issue and get this industry sorted out?
Lord McNally
Whether it is a matter for the OFT or the regulator is a balance of judgment. The noble Lord is right that the figures are showing a doubling. One of the factors that one must look at is the unbelievable increase in whiplash claims, about which I know the Association of British Insurers has held talks with my colleague Jonathan Djanogly. It is far too easy to find in even the most minor of accidents that subsequently whiplash is claimed, along with quite substantial damages. One of the weaknesses in the system is that the insurance companies find it easier to settle and pass on the costs to the customer than to fight these bogus claims in the courts.
Lord Marks of Henley-on-Thames
My Lords, does my noble friend agree that this practice of insurers charging solicitors referral fees for names is not only unethical and offensive but ensures that the claims are handled not by the most competent or well qualified solicitors but by those who are prepared to pay the most to buy the clients—thus effectively depriving their clients of their right to choose the best lawyers to handle their cases? Is that not another good reason for implementing Lord Justice Jackson’s recommendation for a ban on such fees?
Lord McNally
I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this “dirty little secret”, the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand—and we will respond to that demand—to ban it.
Lord Bach
My Lords, I am now slightly confused as to the Government's position on referral fees. I note what the noble Lord said in his written response to the noble Lord, Lord Carlile of Berriew, and what he said in his reply to the noble Lord, Lord Sheikh, today. Have the Government made up their mind to ban referral fees or have they not?
Lord McNally
I am only surprised that someone with such long experience as a Minister should leap on this as if I were dodging the question.
Lord McNally
I can see a few more experienced ex-Ministers over there. The Government are sympathetic to the idea of a ban on referral fees, and are looking at how to tackle the issue as part of wider reforms—how we could do so effectively. Perhaps the Opposition have not yet got used to the fact that we are not a knee-jerk reaction Government; we are looking at the problem. The Prime Minister himself has made it very clear that we believe that Lord Justice Jackson has given us the solution to the problem. We are now looking at how to make it most effective.
Lord Phillips of Sudbury
Will my noble friend please take even more account of the fee-farming industry that has grown up in this country, which encourages indiscriminate and, I have to say, false claims because neither the fee-farming company nor the solicitor who purchases the case from the fee farmer ever sees the client? Without that, there is no constraint on dishonesty.
Lord McNally
My Lords, it is almost 15 years since I first asked a question on this. I have always had my doubts about claim management companies. There are more than 3,000 of them at the moment; 450 of them have had their authorisation cancelled by the claims management regulator, and I would like to see a lot more of them cancelled.