European Convention on Human Rights

Lord McNally Excerpts

Thursday 19th May 2011 Lords Chamber

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

I love following the noble and learned Lord, Lord Falconer, because he always finishes as if he has made the final case for the prosecution in some case where the poor mutt in the dock has to stand up and say, “I did it; I did it”.

It is always a little daunting for a non-lawyer—like the noble Lord, Lord Wills, I am a non-lawyer—to reply to a debate opened by one former Lord Chancellor and closed by another former Lord Chancellor, and with half the contributions coming from QCs. Our learned friends were truly out in force. That is partly a tribute to the noble and learned Lord, Lord Irvine, and the standing that he still holds in the legal profession and more widely. I was delighted when I saw his name down for this debate, because I knew that it would attract speakers of quality and knowledge about the issue. When opening the Second Reading of the Human Rights Bill, he said:

“People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom”.

That is in no doubt and it is the major success of the Act. He also said that he hoped that:

“A culture of awareness of human rights will develop”.—[Official Report, 3/11/97; col. 1228.]

That has not happened sufficiently so far.

I would recommend reading the part of the speech of the noble and learned Lord, Lord Falconer, before he reached his grand peroration. There he set out in a list, as did the noble Baroness, Lady Whitaker, our human rights and how the Human Rights Act protects the rights of individuals. Of course the media are always going to find cases whereby the seemingly most undeserving rascal is given protection. However, in some ways, that in itself is what makes us a civilised society—we give guarantees in those cases, not always just to the saintly and the deserving.

I welcome the contributions of all speakers today and I think that they will help those who take the trouble to read the debate. I hope that our distinguished commission will take the Hansard report of this debate as useful evidence, because there have been many contributions which deserve recognition.

The noble and learned Lord, Lord Falconer, rightly paid tribute to the noble and learned Lord, Lord Irvine, over the birth of the Human Rights Act. The noble and learned Lord, Lord Irvine, in his turn, was generous in his tribute to the consistency of my party on these matters. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kirkhill, among others, valuably pointed out to us the history of the Conservative Party with regard to the European Convention on Human Rights. I recently attended a dinner at Gray’s Inn, at which Sir David Maxwell Fyfe’s daughter was present. A treasure trove of long letters had been found that Sir David had written from Strasbourg about the creation of the Human Rights Act in the days before the internet and before it was so easy to make telephone calls. It was very moving to have his family there and to hear about his commitment and about how Churchill pushed and guided him on these issues. Therefore, I hope that, when we debate this matter, we remember the various contributions that the parties have made.

In answer to the noble and learned Lord, Lord Falconer, I have never said that the Human Rights Act is some precious vase that should be kept on a high shelf and never be looked at. Indeed, I think that the greatest damage that could have been done to it would have been to allow the various criticisms of and attacks on the Human Rights Act and the convention to remain unchallenged and unexamined. Therefore, we have taken it down from the shelf and have put it in good hands to be examined. I hope that this debate serves as an illustration of the kind of informed discussion that we want on how the Act works and how it impinges on our system of justice.

A number of issues have been raised and I shall try to deal with them. Prisoner voting was referred to by the noble and learned Lord, Lord Irvine, and the noble Lords, Lord Prescott, Lord Faulks, Lord Goodhart and Lord Ramsbotham. The old ministerial fallback position of “We are considering the position” is as far as I can go on that, but I am not sure that it is a particularly edifying exercise. The other night, I watched an excellent documentary on BBC Four about the abolition of the death penalty in this country. In a way, I came to the same conclusion that the noble and learned Lord, Lord Falconer, came to about the passage of the Human Rights Act. I doubt whether this Parliament would abolish the death penalty in the way that Parliament did in the 1960s. However, that does not mean that in my opinion Parliament has not improved over the past 40 years or so in terms of its courage in addressing some of these issues.

I liked the statistic that at the recent general election in Ireland every prisoner had the right to vote but only 0.5 per cent exercised it. On the sex offenders register, my ministerial fallback position is that we are looking at the implications of the judgment. However, I also note that it has been applied in Scotland for the past year. Before I leave the subject of prisoner voting, and before people get ready to castigate this weak, flaccid and vacillating Government, I look at the Lord Chancellor who sat on the judgment for six years and did nothing.

The debate on press complaints was useful. The contributions of the noble Lords, Lord Prescott and Lord Black, showed the two sides of the debate that is to be had. The Press Complaints Commission has a job to do in convincing the public that it can be the robust, independent regulator that it was agreed it should be when the special arrangements were made at the passing of the Act. The implications of Section 12 were drawn to my attention. Section 12 asks courts to give proper regard to public interest, and I think that the question of whether that needs sharpening and defining will bear investigation.

I am not supposed to tell your Lordships that the Master of the Rolls is going to deliver his report tomorrow. Government secrets are not what they used to be so I shall be very surprised if he does not deliver it tomorrow, as the Daily Telegraph has already said that he will be doing so. More seriously, I hope that we will be able to look at what he says about procedure with a view to making it more effective—a point emphasised by the noble and learned Lord, Lord Falconer—as well as looking at the procedure for super-injunctions. The noble and learned Lord pointed out that super-injunctions can be issued in secret without the press being able to make their case, and I suspect that the Master of the Rolls will be looking at that, and properly so. However, let us wait to see his recommendations. They will certainly be treated extremely seriously.

The noble Lord, Lord Dubs, and I have discussed the Northern Ireland Bill of Rights before. It was a commitment in the Good Friday agreement. However, I think that successive Governments have said—as has been said about so many things in relation to Northern Ireland—that, when we can get agreement in Belfast, there will be no problem on that issue.

On the specific question of the sex offenders ruling, further to the Home Secretary’s Statement in the House of Commons on 16 February, the Government will shortly bring forward proposals to implement the ruling of the Supreme Court. However, a robust review, led by police and involving all relevant agencies, will be carried out so that a full picture of the risks to the public can be considered. Sex offenders who continue to pose a risk will remain on the register, and will do so for life if necessary.

I turn to the points raised by the noble Lord, Lord Prescott and Lord Black. The noble Lord, Lord Black, said that the law was reasonably easy to apply to the print media but very difficult to apply to the new technologies. This matter is also being tackled by the Joint Committee on the Defamation Bill. Some of the recent publicity about super-injunctions illustrated that it is difficult to track down messages on the new technologies. I am beginning to sound like a judge now, aren’t I? As I even have to ask my son James to send texts for me, you will know why I struggle with these things. But new technologies make it difficult to make the law applicable. We are consulting widely on that and I hope that we will have some agreements, certainly about the internet—guarantees that prevent some of the abuses that have arisen in terms of libel law and freedom of speech in that regard.

I was interested in the interventions of the noble and learned Lord, Lord Scott, and the noble Lord, Lord Tomlinson. I will not presume to make judgments on the matter any more than the noble and learned Lord, Lord Irvine. The noble Lord’s warning was about whether it was worth making the court rulings as subjective as the noble and learned Lord, Lord Scott, seemed to suggest, so that we lost the powerful leverage that the court’s judgments have on human rights across Europe as a whole. That debate will go on. The noble Lord says that you cannot pick and choose; the noble and learned Lord, Lord Scott, says “Persuasive, but not binding”. Our Supreme Court has said that, to get things right, it will follow Strasbourg decisions as it generally does, unless the effect could be inconsistent with a fundamental substantive or procedural aspect of our law.

I will just check quickly through my notes whether I have missed any points that noble Lords made. On the list of good things, I had not realised the real benefit of the Human Rights Act as it applied to courts martial, as spoken about by my noble friend Lord Thomas. He also made interesting comments about Hong Kong.

In reference to the point made by the noble Lord, Lord Pannick, perhaps it needs saying that respect for the rule of law includes total respect for the independence of the judiciary. Occasionally individual Ministers—it has happened in other Governments as well—get tetchy about what judges do, but we should not get too excited that that is somehow an assault on the judiciary. Until 12 months ago I did not regularly mix with the higher ranks of the judiciary, but since then I have had some experience of them. They are fairly tough old characters, so I think that they can stand the occasional word of criticism—as politicians occasionally get words of criticism from the Bench. It is a good and healthy dynamic tension.

I was pleased that the noble Lord, Lord Faulks, spoke, because it was important that the debate had the case for the prosecution, as it were. Has the Act been trivialised? Has there been too much acquiescence by our courts—a kind of mission creep? He made the case for a proper examination of the Act, and that is what we intend to do in bringing forward the commission to look at it.

The noble Lord, Lord Wills, made a point about human rights protecting the unpopular and the minority. That is the essence of a civilised society, as I said before.

By the way, I have just remembered the bit of technology I had forgotten: Twitter. Twittering is hard to track down. The other day I was at a meeting of senior high-tech advisers, and I kept talking about biscuits. Nobody said anything until, in the end, one of them said, “What was that about biscuits?”, and I said, “Where they store all this information”. He said, “Those are cookies”, and then all the experts confessed that they had not interrupted because they thought that the Minister must know about some new technology that they were not aware of.

I am always petrified because the noble Lord, Lord Tomlinson, finishes his speeches with a pointed finger and a question to the Minister, but this time it is easy. I will report back to the Lord Chancellor about the piece of European skulduggery that he outlined in terms of financing. Of one thing we are certain. Ken Clarke went recently to a meeting of the Council of Europe’s body in Izmir in Turkey and outlined our ambitions for reform, and the response was extremely encouraging. We will make a really determined effort during our presidency to press the case for reform, advised by our commission.

Let me end as I began. We are deeply in debt to the noble and learned Lord, Lord Irvine—first, for the Act; and secondly, for inspiring the debate. It has set the parameters of how we will look at the issues, safe in the knowledge that this country had an amazing role in creating the European Convention on Human Rights. We will go forward in the 21st century as firmly committed to that as the generation who, as was rightly said, experienced personally, at first hand, what happens when the state gets out of control—when it does not have checks and balances, and when there are no human rights.

Civil Legal Aid

Lord McNally Excerpts

Thursday 19th May 2011 Lords Chamber

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

The noble Lord, Lord Bach, tempts me. I am thinking of Murder in the Cathedral by TS Eliot:

“The last temptation is the greatest treason: To do the right deed for the wrong reason”.

My objectives in politics, like those of most people in this House, are of course of a moral kind. I did not come into politics to hurt the poor but there is the fact—in this I am not playing the usual party political game—that when we came into government we also came into the biggest financial crisis that this country had faced in 80 years. The noble Lord, Lord Bach, knows full well—because his own Government were planning cuts—that whoever the Ministers were going to be, they would be faced with tough, hard decisions.

To govern is to choose and every department has had to make tough decisions. I do not resile from these. If you are in a department which has only three big-ticket items—prisons, probation and legal aid—and you are asked, as part of the contribution to economic recovery, to find £2 billion in savings, you will have to look at those three big-ticket items. In looking at legal aid, we have tried to look in the most compassionate way at the scope of the areas that we cover. I have answered questions before on this subject. If part of your government system is targeted on the poorest sections of your community and you cut that budget then you are going to hurt those sections of the community. That is the same thing that is happening with local authorities around the country and other departments in looking at their various budgets. It is too easy and I have to say that even with the noble Lord, Lord Bach, at the end, not one of the speakers actually put forward a hard choice as if they were at this Dispatch Box. It is all right to say that we have plans to raid criminal legal aid, or the Law Society is going to shift the cost on to the drinks industry, or—I think the jargon is “the polluter pays”—that it will be spread around Whitehall, but even spreading it around Whitehall leaves the Exchequer with the need to save the money.

I do not doubt the passion that has been expressed today and some very valid points have been made. I will try to deal with specifics as I go through. We are still in consultation. I cannot say that the consultation is going to produce some Pauline conversion at the last moment. As I say, we have made a commitment to savings and we intend to deliver them. What we have tried to do is to look at the whole philosophy of the system of legal aid, which a number of speakers acknowledge had grown and expanded since its introduction in 1949. I went to see the noble Lord, Lord Hutchinson—Jeremy Hutchinson from the Liberal Benches—who is now, I think, 96. He is in splendid form, although he no longer attends the House. He was part of the generation that created the legal aid system. He said to me that their hope then was to create the parallel legal system to the National Health Service. I do not doubt that that what was behind, and is behind, the legal aid system. We share that. The consultation that we put out has produced nearly 5,000—4,800—responses in total. I cannot give the detailed government response today. We will be announcing that in the next few weeks. I can assure the House that the various points made today will be fed back into that consultation.

Before addressing the particular points made in the debate, I wish to reiterate briefly some of the considerations the Government bore in mind in making these proposals. The context of the Government’s overall reform is, as I have said, to tackle the deficit we inherited on entering office. Last October the spending review set out the scale of the challenge facing the Ministry of Justice. However, as the Government have stressed, we know that our policy cannot be determined simply by dealing with the deficit—nor are we doing so. There is considerable potential for reform within the justice system. Our legal structures and our legal aid system are capable of reform. Therefore, financial considerations and the need for reform come together.

There are many reasons why we believe it is necessary to reform legal aid, many of which have been acknowledged today. Since the modern legal aid system was established, its scope has been widened far beyond what was originally intended. By 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. The scheme now costs more than £2 billion a year, making it one of the most comprehensive schemes in the world, even taking jurisdictional differences into account. We need to understand that even after reform we will still have one of the most expensive schemes in the world.

In developing our legal aid reform proposals, we went back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merit test. The proposals in the consultation paper aimed to take into account the importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the dispute, as well as our domestic and legal obligations.

To focus financial support on the areas where it is most appropriate and most necessary, the proposed reforms involve significant change to the scope of legal aid funding. We did not propose any change to the scope of criminal legal aid, and it was also proposed that legal aid will still routinely be available, as a number of colleagues have said, in civil and family cases where people’s liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home.

For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases. Legal aid will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care and for cases involving domestic violence—I note the comments that have been made on that—forced marriage or immigration cases where the appellant’s liberty is at stake. We also proposed that legal aid should be available for cases where people seek to hold the state to account by judicial review, and for cases involving discrimination that are currently in scope. Legal help to bereaved families in inquests would also remain in scope.

However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. We therefore proposed to remove from the scope of the scheme issues that are not, relatively speaking, of sufficient priority to justify funding at the taxpayer’s expense. We proposed to cease providing legal aid support for private family law cases unless domestic violence, forced marriage or child abduction is involved. Too often, the long drawn-out acrimonious nature of court proceedings exacerbates disputes between couples, rather than solving them. Under our proposals, we would continue to provide funding for mediation to encourage couples to use more effectively methods to resolve issues between themselves, rather than using the courts. We are not proposing mediation as a cure-all in place of litigation, and I will say more on that shortly.

The Government further proposed to remove from the scope of the civil legal aid scheme claims of clinical negligence, where, in many cases, alternative sources of funding are available, such as no-win, no-fee arrangements. Again, I note the points made on that. We also proposed to remove from scope the categories of employment, education and immigration, some debt and housing issues, and welfare benefits. There would be exceptions for some of these cases where there is a risk to anyone’s safety or liberty, or a risk of homelessness, or discrimination. In many of these cases, the issues are not necessarily of a legal nature, but require information, practical advice or other forms of expertise to resolve.

We recognised that there would be some cases within the areas of law that we proposed to remove from scope where international or domestic law would require funding by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. However, I say to my noble friend Lord Faulks that we will take a very hard look at issues on the international side. There will not be an open cheque-book on that.

We are looking at the impact of the reforms on existing claimants and various groups who would no longer have access to legal aid. We recognise that the proposals would have some impact on existing claimants or various groups if issues no longer fell within the scope of legal aid. However, that does not mean that people would be unable to resolve their issues. Straightforward mechanisms are often available to assist. For example, legal representation is not currently available in many tribunals, such as on employment matters, because they are designed to be used without legal aid. We published initial impact assessments and equality impact assessments alongside our consultation. Partly in answer to the point raised by the noble Lord, Lord Touhig, we will update the impact assessments when we publish the final response.

There is limited evidence about the impact of the proposals on case length for litigants in person, and the findings are mixed. However, we are seeking to simplify the procedures, forms and guidance available to those using the courts in person.

We recognise that mediation may not be appropriate for all individuals but it is important for them to consider it as an option, and we are currently making its use easier for individuals. When successful, mediation may hold considerable advantages, as it can be a cheaper, quicker and less acrimonious process than contested court proceedings.

Public funding for family mediation has been made available for more than a decade and this has proved to be a successful policy. On 6 April, we introduced a pre-application protocol for family mediation information assessment meetings. Any individual—self-funded or public-funded—will be expected to consider mediation before beginning proceedings. However, family proceedings in relation to domestic violence or emergency proceedings are expressly outside the scope of this requirement. This is a big step forward in improving awareness and encouraging take-up of family mediation.

On civil mediation, the Government are currently consulting on the paper, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. The proposals are to require all those involved in cases below the small claims limit to attempt settlement through mediation before being considered for a hearing, and to introduce mediation information and assessment sessions for claims above the small claims limit. We recognise that we cannot, of course, compel parties to settle but we can create a better environment within which settlement can be explored. The consultation closes on 30 June.

Perhaps I may now turn to some of the specific issues that I have not covered. The noble Baroness, Lady Sherlock, asked for a time lag. I am not sure that that can be done but I shall feed that suggestion back to colleagues.

The question of clinical negligence was raised by my noble friend Lord Faulks and by a number of other noble Lords, including my noble friend Lord Thomas of Gresford. This will undoubtedly be a matter for some debate when legislation reaches the other place and this House. Confidence over whether CFAs will cover that area will, I am sure, be hotly debated, and we can certainly consult Lord Justice Jackson again on that.

The noble Lord, Lord Dubs, was concerned about forced marriages. I had better double-check my notes before I sell the pass on this but I think that forced marriages will remain within the scope of legal aid. We propose to keep legal aid for those cases, including the power to waive the upper financial eligibility. I hope that helps.

I fully acknowledge the point made by the noble Lord, Lord Hart, about the pro bono help from the legal profession. The question of advice deserts was raised; we will look at that as a concern.

To the noble Lord, Lord Haskel, I say that “polluter pays” is a neat option, but in the end the Treasury wants its money.

We are looking at the evidence given by the Law Society on the point mentioned by the noble Lord, Lord Beecham, and will give consideration to it and publish our responses in due course.

I take the point that my noble friend Lord Thomas made about people inserting domestic violence to get themselves in scope; that would have to be advised on.

The noble Baroness, Lady Sherlock, emphasised the need for advice. We differ on whether the advice needed is always legal advice—whether we force people into legal advice.

I go back to the noble Lord, Lord Faulks, to say that we will look hard at requests under the human rights issues, and the Government want funding only on serious and significant cases. I will also feed back his concerns—they were expressed by others as well—about clinical medical negligence.

To the noble Baroness, Lady King, I say that the consultation paper was clear. I was passed it; it is around here somewhere. That document clearly states that we were going to take clinical negligence out of scope. If she sees a contradiction, I will be happy to talk to her about it. I too received her letter; there will clearly be a campaign on that issue.

The noble Earl, Lord Listowel, asked for assurance about children who need separate representation in family cases. Yes, we propose to keep legal aid for children where they have been made a party for the case in family proceedings.

The noble Baroness, Lady Kennedy, took some cheap shots at my friend Jonathan Djanogly, who is a very good solicitor.

I give full deference to the advice of the noble Lord, Lord Crisp, a former Permanent Secretary. However, in his long and distinguished career, I am sure that he too must have sat there with a Treasury demand notice and a programme of cuts to be pushed through.

The noble Lord, Lord Touhig, made a point on special educational needs tribunals, which have been designed to be easy and accessible. We are considering the points he made during consultation.

I am now being tugged at; my time is up. If points were made on which I have not had a chance to reply, I will write to colleagues. I agree with the noble Lord, Lord Bach; this has been an extremely timely debate, because we are still in consultation. It has been extremely useful, because those who have contributed have done so from real expertise and commitment. We are listening. We have some tough decisions to take and we will not flinch from them, but neither will we ignore common sense when it is offered to us.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord McNally Excerpts

Friday 13th May 2011 Lords Chamber

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

My Lords, from the mild titter that went round the House when the noble Lord, Lord Bach, said that I would not need the expert advice that he had needed, we can all assume that there was a little irony in that statement. I know that there was no truth whatever in it. I share his admiration of the quality of advice that I and other Ministers receive on these matters.

I also pay tribute to Greg Knight for his success in piloting the Bill in the other place. I must admonish those colleagues who referred to the presence of Greg Knight in the Chamber today. That is quite against the code and therefore I would not dream of making that point. However, I am glad that he will have heard what has been said.

[Lord Bach]

I was very careful to say that the honourable gentleman was in the vicinity of the Chamber because I was about to fall into error, I know.

[Lord McNally]

Undoubtedly that is the kind of skill that made the noble Lord such a successful lawyer in Leicester, whether instructed by Mr Knight or any other solicitor.

I also pay tribute to someone who has always been my friend, but in the past year has been my noble friend Lord Hunt. It may not be commonly known that my noble friend and I were once on the executive of what I always thought was a modestly titled organisation called the Atlantic Association of Young Political Leaders. We have remained friends and close colleagues ever since.

I am very pleased to be able to respond to the debate. I am the Minister responsible for the Law Commission, so it gives me particular pleasure to confirm the Government’s support for the Bill, which will implement, albeit with some modifications, the recommendations made by the Law Commission in its 2005 report, The Forfeiture Rule and the Law of Succession. The Government are very grateful to the commission both for its expert work on this subject not only in the formulation of its proposals but in the ongoing support that it has given and continues to give to the Government on the Bill, and for its wider ongoing work. The expertise of the Law Commission and the House of Lords is a productive marriage in helping us to simplify, clarify and modify our law.

Before I turn to the Bill, let me respond to the points made, particularly by my friend Lord Marks and by my noble friend Lord Hunt in his opening remarks, about the Law Commission. The work of the commission has been a major success, but the commission is facing the inevitable difficulties posed by a 33 per cent cut to its budget. There is really no room for manoeuvre, given the scale of cuts needed. The cut of 33 per cent is consistent with what is being applied to administrative budgets generally.

However, we are determined to improve on the 68 per cent implementation rate. I am confident that the new House of Lords procedure for Law Commission Bills, along with the measures included in the Law Commission Act 2009—which my noble friend Lord Marks referred to—will help in that regard. While we must be realistic about priorities at a difficult time such as this, I hope that the protocol on best practices will go some way towards ensuring that delays become a thing of the past.

The Law Commission is currently considering proposals for its 11th programme of work, which will soon be put to the Lord Chancellor for approval, as set out in the Law Commission Act 1965. This programme of work will be the first to be agreed under the terms of the protocol. I am confident that in the future delays, both in responding to the Law Commission and in implementing proposals that are accepted, will be reduced as a result. I hope that that is helpful to colleagues. I frequently say in the department that the Law Commission is highly respected in this House, which is eager to use both the great expertise that it has and the procedures that we have adopted to help in expediting Law Commission recommendations.

On the intervention of my noble friend Lord Flight, I will try to respond but I hope that my noble friend Lord Hunt will fill in any gaps. It is interesting that, although the Bill looks like a very minor piece of law, 200 cases are affected by this anomaly each year, as my noble friend Lord Flight informed us. It is very difficult to say whether I can give him guarantees that there are no other unknown quirks or consequences because, if there are unknown quirks or consequences, I do not know about them.

As always, we will continue to keep a close eye on the consequences. The point about death by dangerous driving that was raised by the noble and learned Lord, Lord Scott, is just one such issue that we will try to be alert to, as indeed is the issue of mercy killing. Those are two points where, clearly, there could be issues. I am not sure that the Code Napoléon is quite as close to being the law of our land as my noble friend Lord Flight in some of his darker moments might imagine, so I would not worry too much. As Fred Peart used to say when he was at this Dispatch Box, “Not next week”.

On the question whether there are unforeseen consequences or issues of the sort that have been raised by the noble and learned Lord, Lord Scott, and by my noble friend Lord Flight, we have made a detailed study with the Law Commission. We also had a very full consultation, and we will continue to keep these matters under study.

As I said, the Government support the Bill. The law of succession in this instance governs who inherits what when a person dies. Where there is a valid will, the general policy of the law is that the deceased person’s last will and testament should determine who is to inherit what from his or her estate. In other cases, where there is no valid will, the statutory intestacy rules prescribe the order of inheritance. In brief, the general policy of the intestacy rules is that a surviving spouse or civil partner has first call on the estate for his or her statutory legacy and that otherwise the property of the deceased should pass to closer blood relatives of the deceased before more distant ones. The children of the deceased, for example, should be preferred to siblings of the deceased.

The Bill does not seek to change these general principles. In fact, despite its technical complexity—I might say that I thought that I understood the Bill clearly until my noble friend Lord Hunt started explaining the technical complexities—this Bill is a very modest measure that addresses three specific problems in the law of succession and proposes clear solutions to all of them.

First, the Bill addresses the question of who should inherit when a person is disqualified from inheriting because he or she has caused the death in question. This disqualification is automatic and is effected by the rule of law known as the forfeiture rule. The operation of this rule is not affected by the Bill. As my noble friend Lord Hunt explained, the problem with the existing law was highlighted in the 2001 Court of Appeal decision. Put simply, the problem is that, where a person forfeits an inheritance on intestacy because he or she has actually killed the person from whom he or she would have inherited, his or her children will also be disinherited because the statutory trusts that apply under the intestacy rules prevent them from doing so. The forfeiture rule thereby seems to disinherit not only the criminal but the innocent grandchildren of the victim.

This problem is not confined to intestacy. For example, if a parent leaves a will giving property to his or her son and the son kills the parent, the son cannot inherit. If the parent’s will also said that the son’s children were to inherit if the son died first, the children would not be able to inherit in place of their father because he did not die before their grandparent. Of course, if the will said that the grandchildren could inherit in place of the son, then, irrespective of the reason why the son could not, the children would be able to inherit, but I doubt that many wills are made with the consideration that the proposed recipient might turn out to be his or her killer. Similarly, if there is a will giving a gift to a child of the testator without any further provision, the law implies a term that the gift will pass to his or her children if he or she predeceases the testator. If the testator’s child forfeits his inheritance, his or her children—the testator’s grandchildren—will not be able to inherit, because their parent did not die before their grandparent.

Secondly, the Bill addresses the very similar issue of what happens when the inheritance is rejected by disclaimer. Here, just as in the case of forfeiture, whether the succession is testate or intestate, anyone claiming through the person who rejected the inheritance, such as his or her children, will not be able to inherit unless the will provides to the contrary.

Finally, there is a rather unusual situation, which I think is extremely rare. It occurs where a person under the age of 18 is prospectively entitled to inherit property under the intestacy rules, perhaps from his or her parent, but dies before reaching the age of majority. If he or she dies without having married or entered a civil partnership and leaves children who were alive, or at least in the womb, at the date of the death of the original intestate, the children, who are the grandchildren of the original intestate and who are necessarily minors themselves, cannot inherit from their grandparent in place of their deceased parent. This is because under the technical rules that apply to the statutory trusts applicable on intestacy, their parent did not attain a vested interest in the property of the original intestate. This anomalous outcome, rare as it might be, discriminates against those children.

In all these three cases, the Bill will solve these problems by deeming the person who loses the inheritance, by forfeiture, by disclaimer or by dying too young, to have died before the person whose estate is being distributed. This means that if the person in question died intestate, the children of the person losing out will be able to inherit under the statutory intestacy rules and, if there is a will, that the actual or deemed wishes of the testator will prevail. This will bring the outcomes in these three situations more into line with the general policy of the law by giving priority to the wishes of the testator as expressed in a valid will or in other cases by preferring closer blood relatives over more distant ones.

Both the noble Lords, Lord Flight and Lord Bach, referred to the fact that the Bill differs in some respects from the draft Law Commission Bill published in 2005. It also differs from the equivalent provisions in the draft Civil Law Reform Bill, published by the previous Government in 2009. The main difference is that those earlier draft Bills contain specific trust provisions that are intended to ensure that in forfeiture cases the criminal was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. These special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee in the other place and from people who replied to the consultation from the Ministry of Justice on the draft Civil Law Reform Bill. We have also discussed them in detail with the Chief Chancery Master, Jonathan Winegarten, at the Law Commission. We agree with the Justice Committee that minors who inherit following forfeiture should have their inheritance protected and that all minors should have suitable protection under the Bill. However, from our more detailed consideration of how the special trust provisions originally proposed would work, it is clear to us that they would be problematic and expensive to operate.

In our view, the existing law, which already imposes a trust for the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection. The proposed special trust provisions would not in fact increase this protection. The Law Commission, I would add, is content with the Bill in its present form.

The issue raised by the noble and learned Lord, Lord Scott, about dangerous driving and mercy killing will need to be kept under review. The courts will have a discretion to disapply the rule of forfeiture in the case of mercy killings and will consider the individual circumstances of the case in all cases other than murder. That has been a long-standing approach. However, this underlines the benefit of a debate such as this on a measure such as this one, because in addition to enabling us to support the Bill, which I warmly do, it allows us to tease out some of the issues that need to be kept under review as we move forward. It has also given me the opportunity to lay out—I hope clearly—to the House the ongoing support of the Government for the Law Commission and its work.

Electoral System: Alternative Vote Referendum

Lord McNally Excerpts

Wednesday 11th May 2011 Lords Chamber

[Lord McAvoy]

To ask Her Majesty’s Government what was the involvement of the Electoral Reform Society or of Electoral Reform Services in the procedure used to send out postal ballot papers in the alternative vote referendum in the Glasgow division.

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

My Lords, the Electoral Commission will be reporting on the administration of the May 2011 referendum and elections, as required under Section 5 of the Political Parties, Elections and Referendums Act 2000, and will be considering the role of suppliers and other delivery partners as part of its review process.

[Lord McAvoy]

I thank the Minister for his useful Answer. Glasgow City Council sent out the AV ballot paper to postal voters separately from the other ballot papers. The council did that on the advice of a company called Electoral Services Limited, which the council uses to run its elections. That company in the recent past gave its parent company, the Electoral Reform Society, £1 million in advance, which was promptly handed over to the yes campaign for the referendum. Will the Minister bring forward legislation to ensure that that organisation, or any organisation involved in the running of elections, is not allowed to participate when clearly there is a vested interest?

[Lord McNally]

My goodness. What is that saying—in victory magnanimity? The decision to engage that company was the decision of Glasgow council. The chief counting officer, Jenny Watson, said:

“We have put in place detailed and comprehensive arrangements for monitoring the performance of Counting Officers and their suppliers, and I have no reason to believe that there is any risk to the integrity of the administration of the postal voting process”.

[Lord Rennard]

My Lords, does my noble friend agree that issues such as the supply of envelopes for postal vote mailings should be made on an entirely commercial basis, based on value for money and reliability of service, and that if there were ever any issues of either impropriety in the ballot or failure to deliver, it would be a matter for the Electoral Commission to report which, as he said, will happen shortly?

[Lord McNally]

My Lords, I can well understand the reason for this Question. It was probably to do with the inquest that went on in the Glasgow Labour Party about the reason that Glasgow Kelvin voted so overwhelmingly yes. As we know, what Kelvin does today, the world does tomorrow. My noble friend’s point is absolutely right.

[Lord Foulkes of Cumnock]

My Lords, this is a serious matter. The Minister, like me, is a football supporter. How would he feel if the manager of the other team was also appointed as the referee—because that is effectively what happened? Will he ensure that neither the Electoral Reform Society nor any of its subsidiaries are involved in monitoring such elections in future?

[Lord McNally]

It is a serious matter, and the systems for monitoring whether those elections have gone through properly are in place. As I said in my reply, we will be getting a full report and I have every confidence that the election will have been carried out with the utmost integrity. One interesting thing about the recent elections is the lack of criticisms about conduct compared with the many criticisms that came about during the general election. Therefore, we are making progress and I really do not think that the issue that the noble Lord, Lord McAvoy, has raised is sustainable.

[Lord Ryder of Wensum]

My Lords, does not my noble friend miss the point? He was asked specifically about the conflict of interest, not misconduct. Can he now address the question that the noble Lord, Lord McAvoy, asked about conflict of interest?

[Lord McNally]

My Lords, I do not believe that there is a conflict of interest. It is a separate organisation. The Electoral Reform Society has over many years had a reputation for integrity, which has resulted in it being used by trade unions, non-governmental organisations and a wide range of other bodies, including the House of Lords, and it is pretty cheap to try to make this linkage. We have machinery that the party opposite put in place. Let us see what the electoral body says in its report and we will then look into the matter further. However, I do not believe that there is a conflict of interest and I have great confidence in the integrity of the Electoral Reform Society and its separate subsidiaries.

[Baroness Ramsay of Cartvale]

My Lords—

--- Later in debate ---

[Baroness Ramsay of Cartvale]

The Clock was showing 29 minutes when I stood up. Does the Minister agree that there is a world of difference between looking after the election of office-bearers in a trade union or any other organisation and being involved in a referendum which is about the electoral system and being connected with something called the Electoral Reform Society? Does that not strike the Minister as something different from the norm?

[Lord McNally]

No, it does not. I know that the noble Baroness comes from Kelvin and so must be particularly bitter about the election but such a suggestion really does not stand up. Even by the standards of the noble Lord, Lord McAvoy, this is unworthy of the party opposite.

Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011

Lord McNally Excerpts

Tuesday 10th May 2011 Lords Chamber

Moved by

[Lord McNally]

That the draft regulations and orders be referred to a Grand Committee.

Motions agreed.

Elections: Alternative Vote System

Lord McNally Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Willis of Knaresborough]

To ask Her Majesty’s Government what they estimate will be the cost of a general election held under the alternative vote system.

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

My Lords, the features and associated costs of holding a general election using the alternative vote system would broadly be the same as under the existing system. A notable exception to this is the count, which, depending on the extent of preferences expressed by voters, could take longer and lead to some additional costs.

[Lord Willis of Knaresborough]

I am grateful to my noble friend for that interesting Answer. There is undoubtedly a polarised debate about the future of our voting system. However, does my noble friend agree that it behoves politicians in both Houses of Parliament, particularly Ministers, when making statements to base them on facts and not simply make them up to further an argument? Will he state quite clearly today that there is no requirement in the legislation and no estimate in the Government's plans for any additional costs for electronic voting or electronic counting? Can he bury that argument?

[Lord McNally]

My Lords, reading very carefully, I say that we have no current plans to introduce electronic counting for the Westminster parliamentary elections. The Government have made no estimate of the costs of electronic counting for them.

[Lord Campbell-Savours]

Will the Minister confirm that the Scottish Government have introduced an electronic counting system for local government elections in Scotland, at a cost of £5 million next year—the contract has gone to a firm called Logica, which will be counting votes under STV and AV in by-elections—and that there is an electronic counting system operating in the London mayoral elections under SV, which is again a variation on the AV system? Is not electronic counting effectively inevitable in the end?

[Lord McNally]

My Lords, whether it is inevitable in the end I simply do not know. As to the other information that the noble Lord imparted to the House, I am sure that it will, as ever, be accurate.

[Lord Cormack]

My Lords, is not the Minister correct and the noble Lord opposite also correct? There are no current plans but it is inevitable.

[Lord McNally]

Nothing is inevitable, including the outcome of the AV referendum.

[Lord Kinnock]

Will the Minister confirm that in 90 years of using alternative voting in Australia, no one has ever proposed or used machines for voting or counting under such a system? Will he also confirm that if there were alternative voting in a general election in this country, there is no proposal from anyone, no provision and no finance allocated for the introduction of machine voting? Will he advise people on both sides of this argument that it is disreputable as well as misleading to the electorate to make repeated claims, as some have, that it is necessary and inevitable that machines are used in AV voting systems?

[Lord McNally]

Gosh, we are getting a lot of information today. This is all extremely useful for the electorate. In less than 48 hours, the power will pass to them. I have always been one of those politicians who trusts the people and I will wait to find out what they say. As to the earlier point on the Australian experience, the noble Lord is perfectly right.

[Lord Howarth of Newport]

As the noble Lord has just acknowledged, the reality is that under AV the count would take longer. Will it not be the case that if we were to have an AV system, people would expect to know the result of the general election quickly, as they are accustomed to do? For that reason, is the Minister not absolutely right that if we were to have AV it would be inevitable that we would have to invest in counting machines?

[Lord McNally]

I think we have already had at least three questions on that to which the answer was no. As the noble Lord will know from his experience on the AV Bill, the Government are remaining aloof from the debate itself. However, I found it interesting that a Political Studies Association author at the University of Reading thought that the introduction of AV would imply an annual cost across a five-year electoral cycle of around only 30p per person. That sounds to me like a bargain.

[Baroness Liddell of Coatdyke]

My Lords, is the Minister aware that in Australia, in certain tightly fought constituencies, it can take two weeks to declare the result? Is that acceptable?

[Lord McNally]

I often think that getting the right result is better than getting quick results. Even if it takes the Australians two weeks to get the right result, that is still the right way to do it.

[Lord Peston]

My Lords, is the Minister aware that electronic voting system machinery is irrelevant because elections under AV, which I sincerely hope we do not have, would not be decided by the electoral process at all? They would be decided in smoke-filled rooms. The equipment required would be the equipment needed to fumigate those rooms.

[Lord McNally]

The interest of this House in voting systems never fails to fascinate me, particularly from Members who will run a mile from voting for this House.

Personal Statement

Lord McNally Excerpts

Wednesday 6th April 2011 Lords Chamber

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

My Lords, with the permission of the House, I should like to make a personal statement. The Statement on social mobility that I made to the House yesterday did not repeat the Answer given by my right honourable friend the Deputy Prime Minister to Harriet Harman’s Urgent Question in the House of Commons on the same day. I regret this error and apologise to the House. I have today made a Written Ministerial Statement to put on record the Answer that should have been repeated.

Social Mobility Strategy

Lord McNally Excerpts

Tuesday 5th April 2011 Lords Chamber

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

My Lords, I wish to repeat a Statement that my right honourable friend the Deputy Prime Minister made earlier today.

“Today I am launching a cross-government strategy to improve social mobility: Opening Doors, Breaking Barriers: A Strategy for Social Mobility. This has been overseen by the informal ministerial group on social mobility, which I chair, and in close collaboration with key departments. I am placing a copy in the Libraries of both Houses and making it available on the Cabinet Office website.

Fairness is a fundamental value of the coalition Government. A fair society is an open society in which everyone is free to flourish and rise regardless of the circumstances of their birth. This strategy sets out a vision for a socially mobile society, the principal objective of the coalition Government’s social policy.

In Britain today, the income and social class of parents continue to have a huge bearing on a child’s chances. Gaps in development between children from different backgrounds can be detected even at birth. These gaps grow rapidly during the early years and widen throughout school, such that only one in five young people from the poorest families achieves five good GCSEs, including English and maths, compared with three-quarters from the richest families. This has a major impact on participation in further and higher education, and on success in the labour market. These cycles of disadvantage are repeated across the generations. This not only is a source of great unfairness but hinders our national prosperity, as talented individuals are denied the opportunity to develop to their full potential.

This strategy takes a comprehensive life-cycle approach. A person’s fortune should not be determined at the age of five, 15 or 30. By providing help and support at every stage, we aim to narrow the gap and provide second chances. The strategy seeks to improve social mobility at each life stage: the foundation years, nought to five; the school years, five to 16; the transition years, 16 to 24; and adulthood, aged 24 and over.

In the foundation years, we welcome the independent reviews carried out by Frank Field, Graham Allen and Dame Clare Tickell. Our approach puts supporting parents and providing affordable, high-quality early education and care centre stage. We are maintaining Sure Start children’s centres, recruiting thousands more health visitors, expanding family nurse partnerships and investing in free pre-school education for all disadvantaged two year-olds, on top of existing provisions for all three and four year-olds.

During the school years, our school reforms, giving schools greater freedom, raising the status and quality of teaching and improving accountability and transparency will raise standards in all our schools, while the pupil premium will provide an extra £2.5 billion a year to radically improve educational outcomes for the most disadvantaged pupils. We will also raise aspirations through high-quality advice and guidance, and through much greater engagement between schools, business, universities and wider society.

For young people, we will look to narrow gaps in educational attainment, raising the participation age and increasing funding for apprenticeships while ensuring fair access to higher education and developing a new strategy to increase participation in education and training.

During adulthood, we will continue to encourage fair access to jobs, with the Civil Service leading by example and a new business compact on social mobility asking business to do its bit. At the same time we will maintain a second chance to train and for lifelong learning opportunities, improve work incentives through our welfare reforms, support lower and middle-income earners through our goal of raising the personal allowance to £10,000 and help people to build up their assets.

Crucially, our strategy sets out a clear framework for holding the Government to account on our ambitious proposals. We are creating a new statutory social mobility and child poverty commission to assess progress on child poverty and social mobility, hold the Government and others to account, and to act on and advocate change. We have developed a set of high-level indicators that will be used to track progress; and for the first time, as departments develop their new policies, they will need to consider the impact on social mobility.

I will continue to chair a group of key Ministers to maintain this momentum for change. We recognise that the Government alone cannot single-handedly create a fairer society. This is a task for parents, communities, businesses, professions and voluntary organisations too. However, the coalition Government will help to create a fair and open society where opportunity is shared and everyone can flourish”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord McNally]

My Lords, I thank the noble Lord for that warm welcome for this initiative. At least he gave a warm welcome for the fact that Alan Milburn is continuing his work, which I freely acknowledge he started before this Government came into power. I am pleased that he has continued to make a contribution from his experience. However, there was a little bit of a clue in what the noble Lord said. He said that Mr Milburn started his work in 2009. If my mathematics work right, that is 12 years after the Labour Government came into office. This initiative is within the first year of the coalition Government, a sign that we have hit the ground running in our commitment to this issue.

I know that it is hard for Labour to accept, but the truth is that social mobility flat-lined under its stewardship. There were many reasons for that and I know that attempts to tackle it have been a problem for succeeding generations. My first job was with the Fabian Society of Brian Abel-Smith and Richard Titmuss. Successive Government have looked at this problem of poverty traps.

It is not fair to ask, “Where’s the beef?”. As I said, we are already providing help for disadvantaged two year-olds, 4,200 more health visitors, the pupil premium, to which the noble Lord referred, funding for disadvantaged learners, the national scholarship fund and new access rules for universities.

The noble Lord talked about non-academic children. This Government have addressed in a way that previous Governments perhaps did not do for 30 years the question of apprenticeships. We have expanded the apprenticeships programme to offer 360,000 new apprenticeships at all ages. We are reforming welfare so that work pays and we are raising income tax personal allowances.

Of course, it is easy to snipe at the internship programme and the business compact, but at least this Government have acted in retaining the services of Mr Milburn and asking him to do the preparatory work for a new body. We will keep track of what these initiatives produce and we are willing to be judged by the assessments made by the new body and the progress made by these initiatives.

[Lord Laming]

My Lords, I am sure that the Minister will acknowledge that a number of Sure Start centres are being closed. That being so, what steps are the Government taking to ensure that the centres that remain are made available to the children of families in the greatest need?

[Lord McNally]

That is certainly the Government’s intention. The initiative on Sure Start is still at local authority level but the intention is that it should remain a targeted benefit for those in greatest need, as the noble Lord said.

[Lord Dholakia]

My Lords, I thank the Minister for repeating this important Statement in your Lordships’ House and I ask him to congratulate the Deputy Prime Minister on it. The area of internships has rightly been identified. Does my noble friend accept that in some parts of the country, particularly in the poorest areas, disadvantage and discrimination are an everyday reality in the lives of many people? In many cases, people are still disadvantaged by being in the same place as the one allocated to them when they first moved to this country. What sort of monitoring mechanism will be put in place to ensure that no one suffers discrimination or disadvantage on the basis of their background?

[Lord McNally]

I am hopeful that this will be one of the jobs of the new body that Alan Milburn is setting up. I agree with my noble friend that, of the many problems that we have to tackle, one of the most intractable is social mobility among those from ethnic backgrounds, who often find themselves trapped not only by poverty but by other forms of discrimination.

[Baroness Armstrong of Hill Top]

Does the Minister accept that he is not able to make any announcements today because we are in the middle of the purdah leading up to the local elections? Does he acknowledge that the strategy will end up, as my good friend and fellow north-easterner Alan Milburn said this morning, as motherhood and apple pie unless there are serious changes to some policies, including the way in which mainstream services are funded? The specific attention that is given to areas of higher deprivation is being changed so that, for example, Alan’s and my home county—Durham—is losing money in the funding formula on health to places such as Norfolk, while areas of high deprivation in education are losing more than the pupil premium will give them back. As my noble friend on the Front Bench said, areas that have the highest deprivation will suffer most. What is the Minister going to do in the committee to address this issue, which will signally send social mobility the wrong way?

[Lord McNally]

I am grateful to the noble Baroness, Lady Armstrong, for pointing out that I cannot make detailed announcements today. There may be two reasons for that, one of which is the purdah that she mentioned. The danger of this being motherhood and apple pie is always there. This has been a long, intractable problem in our society. Somewhere in my brief there are details of the fact that, even in a time of high unemployment, we still have skills shortages. The mismatch between need and opportunity continues to be there. There is a real determination in the Statement, and in the intentions of the Government’s strategy, to make sure that such resources as are available—I will not go through the mantra about the decrease in resources available to the Government—are genuinely targeted at those in need. If one can comment on the last Government, no one could deny that they put vast amounts of money into some of these problems. One of the questions that we must now ask in politics in general is why, with the resources that they undoubtedly put into areas such as education, social mobility remained so stubbornly difficult to move.

[Lord Martin of Springburn]

My Lords, while welcoming what has been said on apprentices, may I ask for assurance that any apprentice who is given an apprenticeship gets both the practical on the factory or shop floor and the theory in the vocational colleges? Also, will the House authorities ensure, given the fine craftsmen here, including chefs in the kitchens, that we have a full capacity of apprentices in the Palace of Westminster?

[Lord McNally]

My Lords, on the last question asked by the noble Lord, Lord Martin, I will certainly take that excellent suggestion to the House authorities. If we are going to lead by example as far as the Civil Service is concerned, as my right honourable friend said, we should also do so in the Palace of Westminster. As the noble Lord said, we see excellent craftsmanship at work in many parts of this building. To enable young men and women to obtain skills here would be a good example.

I also agree with the noble Lord on his first question. I always thought that the fall-off in apprenticeships in the 1980s was a waste and that we have had to make a great effort to catch up. It was a loss of real skills. The old apprenticeship scheme was a very valuable part of the skills base in our society. We are only just beginning to put that back. I agree with the noble Lord that there must be both on-the-job training and the use of the full benefits of further education. Another part of the strategy is that the study of an apprenticeship should have, where it merits it, academic recognition to allow somebody to go on into higher education. This is something that we are going to press with the authorities.

[Lord Willis of Knaresborough]

My Lords—

[Lord Richard]

My Lords—

[Lord McNally]

My Lords, I am on my feet, so noble Lords have to sit down. As we have 12 minutes, I suggest that we go to my noble friend Lord Willis, then to my noble friend Lord Ryder and then to the noble Lord, Lord Richard.

[Lord Ryder of Wensum]

My noble friend’s judgment—

[Lord Richard]

My Lords—

[Lord McNally]

I may get it wrong but I am trying to help the House, with 12 minutes to go.

[Lord Ryder of Wensum]

Can my noble friend please clarify why the Statement that he has just given to your Lordships’ House apparently bears scant resemblance to the Statement given earlier by the Deputy Prime Minister in the other place? I picked up a copy of the Deputy Prime Minister’s Statement in the Printed Paper Office just before coming into the House and I would like to know the reason why the two Statements are markedly different. Was it because the committee under the Deputy Prime Minister met between the two Statements, had an argument and decided to change the text?

[Lord McNally]

No. I am not aware that there is a difference between the two Statements. If there is, I apologise. This was the Statement I was given to read. Well done to my noble friend for such a helpful intervention. I am sure that his long experience in government has come to his aid. Perhaps somebody would like to work out what the differences are. Otherwise, I will write to the noble Lord if there are marked differences.

[Lord Pearson of Rannoch]

My Lords—

[Baroness Smith of Basildon]

My noble friend Lord Knight of Weymouth welcomed the strategy, but he was obliged to give a list of actions by the Government that undermine the principle behind it. He missed one very important action, and that is the cuts that have been made to voluntary and community services and to charities, many of which have tried for many years to do invaluable work in helping social cohesion and looking to improve social mobility. In my own town HomeStart, a valuable organisation giving families the support they need in life, will close in the next few weeks because of cuts to its funding. How does that improve social mobility?

[Lord McNally]

I listened to the Statement at the other end. Local authorities across the country are making cuts and it is very easy for people to leap up and say, “How does this strategy match what is going on?”. This strategy is trying to deploy the fewer resources we have in a much more focused way. We are going through a period of economic difficulty and it will be easy to pick up on the impact of the various changes, but today we have laid out a strategy that focuses resources on the most needy and addresses some of the issues that have been identified as causing a lack of social mobility. What we cannot do is return public expenditure to the level at which it was being run by the previous Administration—who were, as the noble Baroness knows, planning to make cuts as well.

[Lord Willis of Knaresborough]

Does my noble friend agree that this is a highly important issue and social mobility is something which nobody on any side of this House or in another place has solved for a great number of years? It behoves us to find practical solutions to the issues rather than simply throwing insults across the Chamber. Today I received a letter from a parent in Greater Manchester who informed me that it previously cost 60p each way per day to send his two children to sixth form in Oldham. The fact that concessionary travel for 16 to 19 year-olds has been removed means that it now costs £3.90 each way per day. Is that what we believe to be increasing social mobility?

[Lord McNally]

No, it is not; but I thought that my noble friend was moving away from that kind of question when he opened his remarks. Funds being targeted at the neediest families will also address problems of travel. I am not standing here saying that there are no cuts or difficulties. I am saying—and I welcome my noble friend’s idea that, at least on some of these issues, we might try to establish a cross-party consensus—that the roots of social mobility have puzzled us as a society at least since the war. I believe that what my right honourable friend has given today, partly building on some of the work of the previous Administration, is a clear sign that we—rather like the Attlee Government after the war, who also faced very difficult economic situations—are not abandoning the causes of welfare reform, work reform or social mobility, or putting them to one side during difficult economic times.

[Lord Pearson of Rannoch]

My Lords—

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, the House will be relieved to hear that this is not a European question. Does the noble Lord agree that teacher training is the soil in which the roots of our education system feed, and that it has been very unsatisfactory for many years, serving the poorest children worst? For instance, the average A-level attainment of those entering bachelor of education courses has often been as low as two Es at A-level, according to government Written Answers. I know that the Government are seeking to address this problem. Can the noble Lord give us any news of progress in this deep but fundamental area?

[Lord McNally]

I am not sure that I can—all my briefing for the noble Lord, Lord Pearson, refers to Europe, so I am not sure. I also see too many educational experts around for me to play this one on the hoof. I do know—as we all know over our lives—that some of the most inspirational people we have ever met have been our teachers. We also know that some of the people who take the toughest jobs and help the very young people we are talking about are teachers in deprived areas. So I am not going to make any comments on teacher quality. I am pleased with the scheme that encourages graduates to go into teaching for a time. It is a very good idea and I am pleased that some of them, having experienced it, stick to it. But I am sure that the noble Lord is right that a high-quality cadre of teachers is part of the solution to social mobility.

[Baroness Howe of Idlicote]

My Lords, perhaps I may take a rather different line. Quite a lot of criticism has been coming in the direction of the Minister, but I should like to congratulate him and the coalition Government on the approach that they have taken to the issue, particularly the fact that the issue now appears to be high up on their agenda. However, as we are referring to the life-cycle approach, I should like some reassurance that this will include, and not place in a separate category, the need for early intervention as described in the two important reports by Frank Field and Graham Allen which we have discussed in your Lordships’ House. That alone would enormously help the whole business of social mobility.

[Lord McNally]

I fully accept what the noble Baroness says. With regard to the source of those reports and Alan Milburn’s involvement, I hope that we can attempt this with some degree of cross-party consensus. It is not the case that we have just discovered the problem of social mobility; as I said before, it has been around for a long time. Without playing prolier-than-thou, I come from a working-class background and in my childhood I was surrounded by what I call the aspirational working class. My father, who was a process worker, was one of the best-read men I know. How we instil in some of the more deprived families the kind of aspiration that there was in, say, the Welsh mining community and other, older working-class communities, I do not know. As my noble friend Lord Dholakia said, one sees it in some of the immigrant communities. There are factors that hold people back but poverty and deprivation are not the only ones. That is why just throwing money at some of these problems is not the solution either.

The fact that this has been announced—slightly differently from the way I announced it, evidently—by the Deputy Prime Minister, with the machinery in place overseen by Alan Milburn to check against results, means that this is not just about motherhood and apple pie but is a genuine attempt, building on some of the work of our predecessors, to be tested against results, to try to deal with a problem that, as I say, has challenged our society since at least the Second World War.

Legal Services Act 2007 (Approved Regulators) Order 2011

Lord McNally Excerpts

Tuesday 5th April 2011 Lords Chamber

Moved By

[Lord McNally]

That the draft order laid before the House on 14 March be approved. Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.

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

My Lords, I presume that later in the consideration of the European Union Bill we will get on to the Schleswig-Holstein question. In the mean time, it is my responsibility to speak to the Motion to approve the Legal Services Act 2007 (Approved Regulators) Order 2011.

The power to make this order is in paragraph 17(1) of Schedule 4 to the Legal Services Act 2007. The order seeks to designate the Institute of Legal Executives—ILEX—so that it can allow its members to conduct litigation and regulate them in doing so. In practice, the extent to which ILEX will be able to deploy this right will be limited by its own regulatory framework, which will mean that the only ILEX members who can conduct litigation if this order is made will be associate prosecutors employed by the Crown Prosecution Service. The Legal Services Act classifies the conduct of litigation as a reserved legal activity that can be carried out only by a person who is either “authorised” or “exempted” by the Act. At present, associate prosecutors are exempted to carry out specific litigation.

ILEX has drafted specific rules that will set out the processes by which the work of associate prosecutors will be integrated into ILEX’s regulatory regime. Under these rules, associate prosecutors will be required to abide by ILEX’s code of conduct and undertake a specified amount of continuing professional development. In addition, ILEX will review and assess associate prosecutor training programmes. A memorandum of understanding has been agreed with the CPS that sets out the working arrangements for the regulation of associate prosecutors, including the handling of complaints, ILEX’s information requirements and a facility for ILEX to carry out its own inspections and reviews.

Both ILEX and the Legal Services Board have consulted on ILEX’s application for designation. The responses were broadly supportive, including those from other legal services regulators. In making its recommendation to the Lord Chancellor about this order, the Legal Services Board has satisfied itself that any issues arising from the consultation have been addressed.

In anticipation of this order, ILEX has applied to extend the scope of its regulatory framework so that it can grant a wider range of litigation rights to a wider range of its membership. It falls to the Legal Services Board to determine this application. Clearly, any extension to the range of ILEX practitioners who can conduct litigation independently could have a significant impact on the legal services market. The Legal Services Board has a statutory duty to promote competition within that market, so I would expect it to evaluate the potential impact carefully in considering ILEX’s wider application.

I commend this order to the House.

[Baroness Gale]

My Lords, I thank the Minister for bringing this order before us tonight. We are pleased to support the order, which naturally emerges from the Legal Services Act 2007. ILEX is already an approved regulator, but its powers as a regulator will now extend to regulating those who conduct litigation.

ILEX was recognised as an approved regulator as a result of the Legal Services Act 2007, the aim of which was to liberalise and modernise the regulation of the legal profession as well as to increase access to legal services. The Act moved away from self-regulation to independent regulation, which was a major step in improving consumer confidence in legal services. It was a very good piece of Labour legislation. At a time when we see daily restrictions on access to justice and the availability of legal services, there is a need to encourage the intention and practice of the Legal Services Act in broadening access where possible.

ILEX does an excellent job in regulating its part of the profession, and legal executives also do an excellent job in the services that they provide. Furthermore, this part of the profession draws from a wider social background than other parts of the profession—something that the strategy for social mobility, which was published today, could learn a lot from. This is a sensible proposal that will enable ILEX to regulate certain members who conduct litigation. I am sure that it will further improve the regulatory system.

It is right and proper that this measure is agreed to promptly and in time for implementation on 1 May. Once again, I am pleased to say that we fully support this measure tonight.

--- Later in debate ---

[Lord McNally]

My Lords, I am very grateful to the noble Baroness, Lady Gale, for her welcome from the opposition Front Bench. I am not having a particularly good day at the Dispatch Box as I am told that I left out a very important part of my opening speech, which I will now give to the House.

At present, associate prosecutors are exempted to carry out specific litigation work under statutory designation by the Director of Public Prosecutions. However, this designation ends on 1 May this year. If replacement provisions are not made under this order, associate prosecutors will not be able to carry out unsupervised litigation work after that date. This represents a large proportion of the CPS workload in the magistrates’ courts, and direct supervision by Crown prosecutors would have a significant knock-on effect for the CPS’s higher court work. The consequences of this for the CPS, and the wider criminal justice system, would be considerable.

The forthcoming termination of the DPP’s designation of associate prosecutors was brought about by concerns expressed during the passage of the Criminal Justice and Immigration Act 2008 that associate prosecutors are not independently regulated or subject to a professional code of conduct. It was intended that arrangements should be made to bring them within ILEX’s regulatory and professional framework since ILEX is already an approved regulator for other reserved legal services. Therefore, a voluntary arrangement was made between the CPS and ILEX in 2008 which requires associate prosecutors to become members of ILEX in order to be designated by the DPP. In practice, therefore, all associate prosecutors have been subject to regulation by ILEX since that time. In essence, this order simply places that arrangement on a statutory footing.

I am grateful for a number of the comments that were made, particularly from the noble Baroness, Lady Hayter, in her capacity as chair of the Legal Services Consumer Panel. I have had brief contact with ILEX recently in connection with diversity. I am very pleased that the noble Baroness put on record the diversity which ILEX already represents, and to which other parts of the profession still aspire. It is important that we recognise that in its work and in these new responsibilities.

The noble Lord, Lord Thomas of Gresford, echoed that support for ILEX as a route to gaining professional qualifications and pointed to its success in promoting social mobility. That again echoes our earlier discussion. However, he gave a warning about the importance of training within ILEX. I am told that the training of prosecutors is to be conducted in accordance with ILEX’s rights of audience and litigation certification rules. AP qualification courses will be provided by the CPS. ILEX has satisfied itself that the CPS training programmes are fit for purpose. Under the memorandum of understanding, ILEX or persons appointed by it will periodically review the AP training programmes and assessment materials to make sure that they meet the criteria in the rights of audience and litigation certification rules. The CPS will notify ILEX of any proposed changes to its training programmes or the development of any new training modules. ILEX will review such materials to determine whether changes are consistent with the criteria in the rules.

The noble and learned Baroness, Lady Butler-Sloss, also made an interesting intervention. I am fascinated by the tributes that she and the noble Lord, Lord Thomas of Gresford, paid to managing clerks. My experience of this area is as an avid watcher of the recent television series “Silk”, in which the clerks seem to be the key movers in dramas that put politics into the shade. Perhaps that was done to attract an audience. However, the noble and learned Baroness put on record a matter that I will take back to my right honourable friend the Lord Chancellor. She said that the ambitions of ILEX to move into civil or family areas should be “viewed with caution”. I am sure that that will be the case as regards my right honourable friend the Lord Chancellor and other parts of the profession, although from what the noble Baroness, Lady Hayter, said, ILEX is progressing in building its professional capabilities.

In anticipation of this order, ILEX has already submitted an application to the Legal Services Board to enable it to allow suitably qualified members to conduct litigation in civil and matrimonial matters. However, the Parliamentary Under-Secretary of State for Justice has undertaken to draw to the Legal Services Board’s attention all the points made when this order was debated in the other place, so that the board can reflect on them in its consideration of ILEX’s application. I am happy to do the same in respect of this evening’s debate, in which a number of colleagues have made useful comments that will be of advantage to the Legal Services Board when it looks at this matter.

I hope that the debate has served to demonstrate that the specific arrangements made by ILEX, as an existing approved regulator, are appropriate for the purpose of authorising associate prosecutors in the conduct of litigation. Certainly I am satisfied that this is the case, based on the recommendations made by the Legal Services Board. I commend the order to the House.

Motion agreed.

Elections: Armed Forces

Lord McNally Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Wills]

To ask Her Majesty’s Government what measures they are taking to improve the timeliness of the dispatch and return of postal ballots for voters in the Armed Forces.

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

My Lords, building on the work done for the elections held in May 2010 by the noble Lord, Lord Wills, the Government have put in place an initiative to support the participation of members of the Armed Forces serving in Afghanistan who wish to vote in the referendum and elections on 5 May.

[Lord Wills]

My Lords, I am grateful to the Minister for that response about the referendum vote. I hope he will agree that the many service voters who want to vote by post in all elections should be enabled to do so. However, he will recognise that deployment in remote areas, particularly in conflict zones, can create serious problems with achieving the timely dispatch and return of postal votes. Can the Minister tell the House whether his Government have continued the work set in place by the previous Government and agree, with the Front Benches of both the Conservative and the Liberal Democratic parties when they were in opposition, to consult on options for addressing such problems with a view to bringing in any necessary legislation by 2012? If they have not set up such a consultation, why not and when will they do so? If they have been consulting, when did the consultation start and when will they be publishing the results?

[Lord McNally]

My Lords, we continue to build on the work initiated by the noble Lord. However, as he recognised, there are no simple solutions to the difficulty of servicemen voting in remote areas in battlefield conditions, et cetera, which is why we continue to advise servicemen to use proxy votes where possible as the most efficient way of being able to vote.

[Lord Rennard]

My Lords, does the Minister agree that what we really need is a slightly longer timetable for conducting our elections in this country, one that would allow a slightly greater time for people to register to vote, to apply for a postal vote and for postal votes to be dispatched and received? That would significantly benefit members of our Armed Forces serving overseas and enable them to participate to a greater degree in our elections.

[Lord McNally]

My Lords, there is a lot of common sense in what my noble friend says. My honourable friend Mark Harper is considering these issues and the Government will put forward proposals when he has reached conclusions with colleagues. However, as I say, I think there is a lot of sense in allowing more time for elections to be processed.

[Lord Soley]

Does the Minister accept that he did not actually answer the Question put by my noble friend Lord Wills? I know that there were several questions, but will he answer them and put them in the Library? One of the most important ones was whether the Government are consulting and, if so, when the consultation started and when it finished. I think an answer in the Library would be very helpful because it is a very important matter.

[Lord McNally]

I am sure it would be and I look forward to reading it. Whether we have followed exactly the consultations initiated by the noble Lord, Lord Wills, quite frankly I am not sure. Nevertheless, we are following all the initiatives that he brought in during that time and some new ones as well. I do not doubt that we want to see the military participating in elections, as did our predecessors. If that consultation is still going on somewhere, I will report it as the noble Lord requested. I assure the House that the various initiatives are still being pressed forward with due vigour.

[Lord Roberts of Llandudno]

My Lords, at the last general election, of the 10,000 troops in Afghanistan, only 500 were able to register a vote either by proxy or postal vote. This is totally unacceptable.

Furthermore, can we have some consistency in the length of time between, say, nine, 10 or 11 days for a nomination for a general election until polling day, and 25 days for others? Can we work very hard in the immediate future to make sure that we have the same length of time between nomination, close of nominations and polling day?

[Lord McNally]

My Lords, the call for consistency, which I think was also made by my noble friend Lord Rennard, is exactly the issue that Mr Mark Harper is looking at at the moment. As I said before, I think that there is a lot of sense in getting that kind of uniformity.

As to the turnout by troops serving in Afghanistan the last time, perhaps there were problems in getting to vote, but there is also a low propensity to vote among servicemen. That is something else that we are trying to address in terms of encouraging initiatives in the services by responsible members of each unit.

[Lord Foulkes of Cumnock]

My Lords, does the Minister not recall that in the Committee stage of the AV and constituency-gerrymandering Bill, this side tabled amendments that would have extended the time for the distribution and return of ballot papers by servicemen and others? However, those amendments were rejected by the Minister—if he was there; he might have been ill at the time, but they were certainly rejected by the Government—and by the noble Lord, Lord Rennard. Is that not the case?

[Lord McNally]

I do not remember us discussing the Bill that he described. A word in the noble Lord’s description was wrong. As I have said twice in response, these matters are being looked at, and the Government will bring forward proposals. As for the AV and constituency boundaries Bill, the noble Lord lost on most issues, as he will remember.

[Baroness Royall of Blaisdon]

My Lords, I understand that the noble Lord and his department are consulting on these issues. Can he guarantee that a new system will be in place at the time of the next election, be it 2014 or 2015, because on all Benches we naturally wish to ensure that our service men and women have a greater opportunity to vote, if they wish to?

[Lord McNally]

My Lords, this is certainly the Government’s intention. As the noble Baroness will know, we are in the process of carrying through a whole raft of constitutional reforms, and I am quite sure that any proposals on this matter will be as successful as the proposals that have been carried, thus far.