Offender Management Act 2007 (Commencement No. 6) Order 2013

Lord McNally Excerpts

Wednesday 24th July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 10 June be approved.

Relevant documents: 4th Report from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 22 July.

Motion agreed.

Offender Management Act 2007 (Commencement No. 6) Order 2013

Lord McNally Excerpts

Monday 22nd July 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Offender Management Act 2007 (Commencement No. 6) Order 2013.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments.

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

My Lords, Sections 28 and 29 of the Offender Management Act provide for the polygraph testing of sexual offenders. Specifically, they enable polygraph testing to be included as an additional licence condition for adult sexual offenders. The Act required the provisions to be piloted in specified areas before full implementation. Those pilots took place in eight probation trusts from January 2009 to March 2012. As I shall come to explain, the pilot was successful. The purpose of this order is to commence the provisions fully, to enable polygraph testing to be included as a licence condition for sexual offenders throughout England and Wales rather than just in the pilot areas.

As noble Lords may be aware, a polygraph is a device that indicates whether someone might be lying. More specifically, it measures changes in heartbeat, breathing rates and sweating. Changes in these activities can indicate whether an individual is telling the truth in response to a set of questions. The management of sexual offenders in the community is rightly a serious concern to the public. Having an objective assessment of how truthful or otherwise an offender is with his or her probation officer has the potential to make supervision more effective and hence might reduce the risk of further offending. The potential for polygraph testing as a tool for enhancing the effectiveness of the statutory supervision of sexual offenders was considered in the Home Office’s Review of the Protection of Children from Sex Offenders, published in 2007. That review recommended the piloting of polygraphy as a licence condition.

Following commencement of Sections 28 to 30, polygraph testing was piloted in the east and West Midlands from January 2009 to March 2012. In the pilots, adult sexual offenders released on licence into the pilot area had a condition to comply with polygraph testing included in their release licence. In these pilots, sexual offenders were polygraph tested during supervision to help assess whether they were complying with their licence conditions or their level of risk had changed. The polygraph was, of course, just one component of their supervision. Offenders were also subject to the usual supervision process, which includes regular reporting to a probation officer and may also include attendance on an accredited sex offender programme, help with substance misuse and assistance with accommodation or employment.

Polygraph testing was provided under a contract with the University of Newcastle. An independent evaluation study of the pilots was carried out by the University of Kent. The aim of the pilot was to find out whether polygraph testing was a useful additional tool for probation officers in their management of sex offenders in the community, who were on licence. In other words, the pilots set out to answer the question: is polygraph testing effective in helping to protect the public from serious harm?

The commencement order made under Section 41 defined the areas where the pilots would take place and their duration. The intention was that, on completion of the pilots, Parliament would consider their efficacy and whether polygraphy should be rolled out across the probation service in England and Wales. Any extension or expansion of the scheme may be made only with parliamentary approval. Now that the pilots are complete and have been evaluated, I am pleased to report that they were very successful.

I should, at this point, draw attention to a change in the explanatory memorandum provided to the Secondary Legislation Scrutiny Committee. The explanatory memorandum stated that 599 offenders from seven probation trusts were subject to mandatory polygraph testing during the pilot. Five hundred and ninety-nine offenders were tested across eight trusts during the entire lifetime of the pilots, which ran between January 2009 and March 2012, but the evaluation, which was conducted between April 2010 and December 2011, was based on the testing of 332 offenders in the pilot areas. In other words, testing started before the evaluation and continued afterwards, but only those tests undertaken during the period between April 2010 and December 2011 were used for the evaluation study. As the 599 figure was based on previously unpublished internal management information, officials advised that it would be more appropriate to use the publicly available evaluation data on 332 offenders, and the explanatory memorandum was amended accordingly. The evaluation is in no way diminished or affected by the changes to the original explanatory memorandum. The Minister for Prisons and Rehabilitation arranged for the original explanatory memorandum to be withdrawn and an amended version to be laid in its place. I know that the Minister has apologised to his colleagues in the other place and to the chairman of the Secondary Legislation Scrutiny Committee for this late change, and I should like to add my own apologies to noble Lords.

The evaluation is a robust study of the mandatory polygraph pilot. Outcomes for offenders who were subject to mandatory polygraph testing were compared with a similar group of offenders who were supervised in other probation areas where they did not use the polygraph as part of supervision. The evaluation found that the offenders subject to polygraph testing made more “clinically significant disclosures” than the comparison group. These are disclosures that led to changes in the way the offender was managed. Information disclosed as part of the polygraph process led to probation offender managers taking additional actions to manage the offender’s risk and to improve compliance with their licence conditions. This included, for example, changing the focus or frequency of supervision or, if combined with further information, recalling the offender to custody. The explanatory memorandum includes a link to the final published report of the evaluation study. That report provides full information on the effectiveness of mandatory polygraph testing during the pilot. In summary, it concludes that polygraph testing has the potential to lead to more informed and effective supervision by probation officers.

I am aware that there are a number of misconceptions about what a polygraph is and how it is used. Polygraphy is often seen in the entertainment industry, and if you search for polygraphy on the internet, you will find sites which tell you that it does not work and give advice on how to “beat” it. Opinion is divided about how accurate a polygraph is in detecting deception, but the US National Research Council indicates that the polygraph can obtain levels of accuracy of around 80% to 90%. This is clearly not the same as 100% accuracy but it is well above chance.

As part of the supervision of sex offenders, it is not the detection of deception that is the critical factor, rather it is the information disclosed by the offender before, during or after the polygraph test that is used to inform decisions about their supervision. In other words, it is less about “detecting lies” and more about gathering useful information to properly manage risk. For that reason—this is a point that I want to make absolutely clear—no offender will be recalled to custody as the result of a polygraph test alone. An offender will be recalled to custody only if there is additional information that they are not complying with licence conditions or that their risk to the public is increasing. In many cases, such information was volunteered by offenders in the pilots, when they were presented with the results of their tests. Nor will the polygraph be used to determine guilt or innocence. Indeed, Section 30 of the Offender Management Act 2007 specifically prevents any information obtained under the polygraph being used in criminal proceedings against the offender.

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[Lord Beecham]

My Lords, we have heard a good deal about capacity and incapacity this afternoon. With respect, it does not say much for the capacity of the department that it clearly made an error in the way it presented the report to the Secondary Legislation Scrutiny Committee. It ought to be comforted by the fact that it was an error of only 40% compared with the 90% that appeared in the costing that it applied to higher-value claims in the criminal legal aid consultation paper—the department is moving in the right direction. In all fairness, it should be pointed out that the letter from the committee talked about “probationary trusts”, so capacity is perhaps an issue that extends to the committee as well as the department.

I very much welcome this report, for two reasons to start with: the whole scheme was started by the previous Government and Newcastle University was very much involved in it. Those are two grounds on which I could hardly fail to commend the Government for proceeding. It is right that the project should be taken forward.

I am slightly unnerved by the concept of polygraph testing. To me, it has echoes of “Minority Report”, the Tom Cruise film—I do not know whether the Minister saw it—in which, in a future world, technology is used to predict criminality by potential offenders and they are intercepted at an early stage. That nightmarish outcome is not envisaged under the regulations; on the contrary, they should assist in dealing with potential offenders. I welcome the assurance contained in the explanatory note, and given again by the Minister, that they will not be used as a basis for returning people to custody; nor will they be relied on in court proceedings. They are an indicator as to whether steps should be taken—additional supervision or the like—for offenders. That is a welcome limitation.

However, I have one or two questions. The discussion is about applying the polygraph tests to serious sex offenders. I am not clear what constitutes a serious sex offence for this purpose or how you define serious sex offenders. It would be helpful if the Minister could clarify that.

In addition, it is interesting that the process as currently envisaged sees the technician carrying out the test at the behest of a probation officer. Given the proposed changes in the probation service, do the Government intend that such an approach would always be supervised by a probation officer as opposed to some of the other people who will be carrying out supervision under the new contractual and payment-by-results system which the Government seem intent on pushing forward? Given the nature of the offences we are talking about, it would be preferable for these matters always to remain within the domain of the probation service.

The explanatory note refers to a national rollout targeting not only serious sexual offenders—a point I have already made—but,

“others for whom it is deemed necessary and proportionate”.

Again, can the Minister give an example—if not today, subsequently—of what is envisaged by that rather broad phrase? It seems to me that both parts of that phrase need to be more clearly defined.

In debate in the House of Commons, my honourable friend Jenny Chapman asked whether all sex offenders should be covered by the procedures, as opposed to serious sex offenders only, however defined. There is capacity, it is noted in the note, for a further 200 sexual offenders to be built into whatever contract is eventually arrived at—hopefully not with Group 4 or Serco—for this. That would be in addition to the 750 per year which it is anticipated would be subject to mandatory testing. Actually, the report states that the most recent figure is 780. So we might be talking about 1,000 people altogether, with that extra capacity of about 200.

The question arises whether that will be sufficient. It was argued quite forcefully by the Minister replying to the debate in the House of Commons, Mr Wright, that there was a cost factor here. One understands that, but the cost of this project is estimated at about £3 million. If every sexual offender were to be tested—although I am not suggesting that—that would increase the cost to, say, £12 million. Given the nature of the offences, I wonder whether the financial consideration should be all that material. I repeat that I am not suggesting that everybody should be tested, that would not be sensible—but I hope that an artificial financial limitation will not be imposed on the procedures. That would be a matter of public concern, whereas this whole proposal should reassure the public that their safety is likely to be enhanced by the process, with all the safeguards and qualifications to which the Minister has referred.

The Opposition approve the thrust of the report, and I look forward to hearing from the Minister about the queries that I have raised—either today or subsequently.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Beecham, for that response. As I made clear in my speech, the department regrets the error that was made, but at least we got good marks from him for our choice of university, so I have come out of this with some merit. I am not a great Tom Cruise fan and I have not seen “Minority Report”, but that is probably a generational thing. I started off with the same scepticism about polygraphs, mainly because of my addiction as a child and a young man to American B-movies where they quite often played a key part. I am thinking of Broderick Crawford exposing the villain.

The noble Lord said that making it available for all sex offenders was a consideration at one point, but the way we are approaching this enables us to target resources on those offenders who are likely to cause the most harm to the public. It will be for serious sex offenders, and just to clarify another of his questions, it will remain part of the public probation service. All offenders released on licence for sexual offences will be managed under the multi-agency public protection arrangements. All MAPPA cases will be retained by the public sector. This means that the providers of polygraph testing will work with offenders who are managed by retained public sector staff. We will ensure that all staff working with high-risk sexual offenders are appropriately trained and supported in how to use polygraph testing to enhance the effectiveness of the statutory supervision.

The noble Lord asked how the choice will be made. It will be made where the MAPPA process indicates sexual offenders who are assessed as being at high risk of both reoffending and causing serious harm. By doing this, it enables us to target resources on those offenders likely to be the most dangerous to the public. As the noble Lord said, I do not think that cost should be the decisive factor, although of course it has to play a part in deciding what we can afford in taking this forward, but more than cost it is a matter of proportionality. It is a useful tool for the offender manager. I am glad that he acknowledged that the whole thrust of both the pilot and now the proposal is to add an extra piece of equipment to the armoury of the offender manager so that he or she can make a better informed assessment of the danger to the public of a sex offender and thus take forward appropriate treatment—including, if necessary, recall. The noble Lord indicated that this was an initiative of the previous Government which we have carried forward and which I think we can recommend to the House with cross-party support.

[Lord Beecham]

I am very grateful for that response. Could he, in due course, set that out a little more clearly? I revert to this question of what constitutes a serious sexual offence. There are some obvious things—rape, attempted rape—but you get down to indecent assaults and so on. Are you going to be weighing, for example, a lesser offence by a record that suggests that it has been repeated, although it is not of itself a serious offence? In other words, what is the composition? That needs a little bit of elucidation. I am not asking for that now. Also, is there any chance of this system being extended to politicians or even Ministers?

[Lord McNally]

Even as I was speaking I was conscious that I was sweating but that is more because of our heat wave. Whenever you use words such as “serious” in part that is the professional judgment of the probation officers. It is their judgment and assessment of future danger and risk that qualifies them for this kind of assessment. The intention in bringing this forward is showing that assessing future risk is itself a risky business. We feel that this use of polygraphs as a tool in a wider range of skills and judgment by the probation officers is a useful addition—no more, no less. With that, I recommend the order to the Committee.

Motion agreed.

Supreme Court (Judicial Appointments) Regulations 2013

Lord McNally Excerpts

Monday 22nd July 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Supreme Court (Judicial Appointments) Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Judicial Appointments Regulations 2013

Lord McNally Excerpts

Monday 22nd July 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Judicial Appointments Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Judicial Appointments Commission Regulations 2013

Lord McNally Excerpts

Monday 22nd July 2013 Grand Committee

Moved By

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Judicial Appointments Commission Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

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

My Lords, the three sets of regulations before us today contain the detail of selection processes for judicial appointments and the composition of the Judicial Appointments Commission. Specifically, the draft Judicial Appointments Regulations 2013 set out the details of the selection processes to be followed when selecting for certain judicial offices managed by the Judicial Appointments Commission, and processes of selection for the offices of Lord Chief Justice, heads of division, the Senior President of Tribunals and Lords Justice of Appeal. The draft Judicial Appointments Commission Regulations 2013 set out the details of the composition of the Judicial Appointments Commission including the number of commissioners and the process for their selection, while the draft Supreme Court (Judicial Appointments) Regulations 2013 set out details of the selection process for the appointment of Supreme Court Justices, including the revised composition of the selection commissions.

Before setting out further details, I will explain the background to these changes. In November 2011, the Ministry of Justice issued a public consultation entitled Appointments and Diversity: A Judiciary for the 21st Century, which focused on delivering changes to the statutory and regulatory frameworks for judicial appointments and contained measures to increase judicial diversity. One of the proposals in our consultation was to address the balance between primary and secondary legislation; specifically, to move the detail of the appointments processes into secondary legislation while keeping important elements of principle on the face of primary legislation. This approach was supported by the Constitution Committee as part of its inquiry into the judicial appointments process.

Running concurrent with our consultation, the Constitution Committee in the other place carried out an inquiry into the judicial appointments process. In its final report following the inquiry, the committee agreed that the detailed provisions of the Constitutional Reform Act 2005 should be included in secondary legislation. They emphasised that Henry VIII clauses should not be sought; provisions of particular constitutional importance should continue to remain in primary legislation where they will continue to be subject to full parliamentary scrutiny. Upon the introduction of a Bill, the Government should publish draft secondary legislation and the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court should be consulted before secondary legislation is laid before Parliament.

Following the committee’s recommendations and the support we received via our consultation, the Government introduced powers for the Lord Chancellor to make regulations through the Crime and Courts Act 2013, with the agreement of the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court, which would contain the detail of the judicial appointments processes, and these are the regulations we are considering today. While moving this detail into secondary legislation, we also made some changes to the judicial appointments processes themselves that were informed by the recommendations arising from the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger, together with observations received from the Constitution Committee in the other place.

All three sets of regulations have been developed in conjunction with the judiciary and the Judicial Appointments Commission, and we have shared the draft versions with the devolved Administrations. Early drafts of these regulations were shared with Parliament during the course of the Crime and Courts Bill, as it then was, through Parliament as per the observation made by the Constitution Committee. Lastly, as required by legislation, the draft Judicial Appointments Regulations 2013 and the draft Judicial Appointments Commission Regulations 2013 have been agreed by the Lord Chief Justice before being laid. The draft Supreme Court (Judicial Appointments) Regulations 2013 have been agreed with the President of the UK Supreme Court before being laid. With this in mind, I turn now to each statutory instrument individually.

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[Lord Beecham]

I am not in a position to say that—the Minister is—but I gather that he or she would not necessarily be restricted in that respect. Personally I welcome that because otherwise you would have the somewhat anomalous position where the converse would not be the case: the member engaged in tribunal appointments would, by definition, not be a member of the chartered institute and would be either a barrister or solicitor. There is the option for balance—it is not necessarily the case—where the CILEx member was involved in other than tribunal appointments. That possibility could occur. I dare say the Minister will correct me if my interpretation is wrong. I very much welcome the inclusion of CILEx in that.

I return to the question of the steps the Government will take to ensure that there is diversity in the appointment of membership of panels, especially in relation to gender and ethnicity. The noble and learned Lords, Lord Scott and Lord Brown, referred to the difficulties raised by the provision relating to incapacity. It is rather striking that incapacity is only treated as a matter of concern if it afflicts a holder of judicial office. It is not inconceivable that it might afflict the Lord Chancellor but that is not covered by the arrangements. That is slightly odd. I sympathise very strongly with the observations of the noble and learned Lords in that regard. There must be a procedure in which the Lord Chancellor is not perceived to have an unfettered and sole discretion in this matter. That might not be the Government’s intention—I suspect it is not—but it would be much better if that were explicit. I hope the Minister will take this back and possibly make it the subject of further regulation. The point that was made was quite powerful.

There are two other matters I invite some comment on. First, given that we are not talking about judicial appointments, I wonder whether the Government have taken on board sufficiently—or to any extent—the impact on future appointments of the changes they are proposing, particularly in criminal legal aid. There is widespread concern, expressed across the legal profession and reaching into the judiciary, that diversity issues will arise if, as seems likely, there is a significant reduction in the size of particularly the criminal Bar but also of the solicitors’ side of the profession. I declare my interest as a member of the Law Society and an unpaid consultant to a firm of which I was formerly senior partner. There is a fear that the ladder of appointments might become rather remote from those who currently succeed in progressing. Even now, as I indicated, they do not progress as high as the Government would wish. Again, I invite the Government to consider the impact of these changes on their aspirations for diversity in the judiciary.

Secondly, there is an area that I confess is beyond the scope of these regulations. I invite the Minister to indicate what steps the Government are considering to sustain and promote diversity among the magistracy. That is diversity of all kinds: again gender and ethnicity but also, although it is not in this series of recommendations affecting the judiciary, social class as well. A local justice system needs diversity in its officeholders to a significant extent, as does the judiciary with which we are today concerned.

Having said all that, the Government are certainly moving in the right direction. We hope that some of the points made today might be reflected in further regulation. This is a good start but needs to be taken further. No doubt over time the Government will assess what progress has been made and what steps they could take to encourage more applications for judicial officers at all levels from a wide range of people qualified in every respect to fulfil that important duty.

[Lord McNally]

My Lords, I am extremely grateful to all those who have contributed to a very interesting debate. I have to confess that as I sat waiting for the debate to begin, I felt rather like a character in Alfred Hitchcock’s “The Birds”, as I watched various distinguished Members of your Lordships’ House flutter on to their perches waiting to take a peck at me. I shall start by responding to the noble Lord, Lord Beecham, who is always thoughtful and incisive in what he has to say.

I think that a lot of people were hoping that the selection of the Lord Chief Justice would give us an opportunity to make a great statement in terms of diversity with the noble and learned Baroness, Lady Hale, as one of the candidates. But, as has been made clear in a number of letters to the Times today, that does not take away from the fact that we have a very good choice for the Lord Chief Justice and we wish him well in his appointment. A name which has been bandied around a great deal is that of the noble and learned Baroness, Lady Hale. I remember when the Metropolitan Police appointed its first black policeman, PC Norwell Gumbs. For a while, PC Gumbs seemed to be on duty outside 10 Downing Street, Buckingham Palace or almost anywhere that would give the impression of a diversity that did not actually exist. I must also say to the noble and learned Lord, Lord Hope, that in the three years that I have been a Minister, the Supreme Court has made three or four appointments, none of which has been particularly diverse, although undoubtedly extremely eminent. As my noble friend Lord Marks said, in these regulations we are taking some stuttering steps forward in diversity. I have been assured by the very highest ranks of the judiciary that if I am patient, in 20 years’ time all will be well. I would say that that is not a timescale that the country will be satisfied with.

We are trying to encourage the panels themselves to be diverse. It could take us into a much wider debate, but I am conscious that it is from the criminal Bar that we get the flow of eminent lawyers who go into our senior judiciary. I hope that the Bar itself becomes much more constructively involved in looking at how we bring about social mobility there. For one reason or another—you cannot put all the blame on legal aid—in my opinion, access to the Bar is probably less socially mobile than it was 20 or 30 years ago, and that should be a matter of concern to us.

I also agree with the noble Lord, Lord Beecham, in that I am a great supporter of the magistracy. There is always a problem in respect of its social composition but I think that it has come a long way from being the local squire dispensing justice. Indeed, if we want to look for diversity in our judicial system, it is there in the magistracy, where there is far greater diversity both in terms of gender and ethnic representation. I hope that we will look at how we encourage more people into the magistracy and how we can give the magistracy greater responsibility and powers within our criminal justice system. While I remain in this post, I will certainly look for those opportunities.

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[Baroness Donaghy]

I thank the Minister for allowing me to intervene on this. I do not have any legal qualifications, but I understand employment relations. I am grateful that the Minister has agreed to take this incapacity issue back because I think it is important to look at it from an employment relations point of view, if only to refer to agreed procedures in the regulations. That might see the issue out.

I think that there has to be transparency about the procedures. The circumstance might be very narrow, it might be extremely rare, but it is always those narrow and rare occasions which come under the spotlight. I think it is also a case of how the people who work in that environment feel about the fact that they could be treated in this way. I think there is an important issue as regards referring to some accepted procedure for the Lord Chancellor to go about in taking his or her decision.

[Lord McNally]

First, I am sure that those who produce Hansard will know this, but I think that I said that the noble and learned Baroness, Lady Hale, was a candidate for Lord Chief Justice. I was of course referring to Lady Justice Hallett, but I know how wonderful Hansard is at making sure that “ums”, “ahs” and mistakes miraculously become eloquence the following day.

I must be clear on this: I cannot take back the order. I am not empowered and, as I made very clear, these three orders have gone through a considerable mincer. What I have said I will do is draw to the Lord Chancellor’s attention the concerns that have been expressed today, the broader concerns of noble and learned Lords, and the noble Baroness’s particular concerns from the point of view of what I would call human relations. I will ask him to consider the points that have been made. If this is genuinely a mistake, a lacuna, or something that needs further action, I am sure that there are ways and opportunities to do so.

I hope that this very useful debate, which has covered a wide area, has given us an opportunity to air a number of important points. In the end, however, it is worth remembering that these statutory instruments build on the ambitions of previous Governments to make our judiciary more diverse and the method of selection more open. To go right back to the noble Lord, Lord Marks, yes, there is still a long way to go and these are perhaps timid steps, but they are steps in the right direction and I hope that they will have the support of the Committee.

[Lord Hardie]

I should just express my concern about the reference to CILEx. I fully appreciate that CILEx members should be members of a commission appointing a tribunal where they have experience, but the whole point of having legally qualified members of the commission is to have people who have experience of the courts within which they appear. That is why we are talking about barristers or solicitors of the Supreme Court. When it comes to those other courts, the CILEx member will have no experience of that and he or she will effectively be an additional lay member, so the balance of the commission is being skewed. I invite the Minister to reflect on that and perhaps come back with an amendment to confine the involvement of CILEx members to jurisdictions where they practise and have some experience. It is important that we should be aware of the legal qualifications and legal ability of the people presiding over courts in which they do not appear.

[Lord McNally]

I hear what the noble and learned Lord, Lord Hardie, says. As with the other point, I will take it back. We have to get the balance right between panels that are suitably qualified so that they know what they are doing and panels that choose “chaps like us”. That debate will go on.

[Lord Hardie]

I should say that I am not from this jurisdiction. I have no experience of this jurisdiction and I was not advocating an appointments process on the basis of appointing “chaps like us”. I was trying to confine myself to the regulations. The regulations themselves set out the basis on which the commission is to be composed. It is to be composed of so many judges, so many lay people and so many legally qualified people. The point of legally qualified people—that is, barristers and solicitors in the Supreme Court in England and Wales—is that these men and women have experience of that jurisdiction and know what is required of people exercising that jurisdiction. I can understand the Government’s desire to involve CILEx in tribunal appointments because that is a jurisdiction of which its members have experience. I am not advocating jobs for the boys but trying to adopt a sensible approach to these regulations. If you appoint a member of CILEx to sit on a commission which is appointing a judge of a higher level than that of a tribunal, effectively you are adding an extra lay member and you do not have the balance that the regulations suggest.

[Lord McNally]

I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—

[Lord Marks of Henley-on-Thames]

My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.

[Lord McNally]

That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.

[Lord Scott of Foscote]

I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.

[Lord McNally]

It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.

Motion agreed.

Coroners and Justice Act 2009 (Consequential Provisions) Order 2013

Lord McNally Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 8 May be approved.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 10 July

Motion agreed.

Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013

Lord McNally Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 18 December 2012 be approved.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, Session 2012–13, 25th, 32nd and 35th Reports from the Secondary Legislation Scrutiny Committee, Session 2012–13, 2nd and 7th Reports from the Secondary Legislation Scrutiny Committee, Session 2013–14

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

My Lords, before starting my speech it would be remiss of me if I did not pay tribute to the late Lord Newton. He was passionate about administrative justice and provided rigour and challenge in your Lordships’ House to the proposals contained in the Public Bodies Act. We will all feel his presence and spirit with us in today’s debate.

The purpose of this draft order is to abolish the Administrative Justice and Tribunals Council using powers provided in the Public Bodies Act 2011. Before setting out further details on the order, I will briefly explain some of the background. The AJTC is an advisory, non-departmental public body, not a tribunal or any other form of judicial body. It does not exercise powers that relate to judicial independence or judicial decision-making. It was created before much of the reform of recent years was implemented—crucially before a unified tribunal structure was put in place.

The Government announced proposed reforms to public bodies on 14 October 2010. It was considered that the oversight of the administrative justice system and development of policy was properly a function of government, and also that the AJTC’s oversight functions with regard to tribunals were no longer required, given the governance and oversight arrangements that exist within HMCTS. The AJTC was therefore included for abolition in the Public Bodies Bill. A public consultation, including the proposal to abolish the AJTC, was launched on 12 July 2011 and closed on 11 October 2011. The Government’s response to the consultation was published on 15 December 2011. After considering all the responses to the consultation, the decision was that the AJTC should be abolished. Following further policy development and discussions with the devolved Administrations during 2012, the draft order was laid before Parliament on 18 December 2012.

Noble Lords will no doubt be aware of the scrutiny given to this draft order by both the Justice Committee in the other place and the Secondary Legislation Scrutiny Committee in this House. The Secondary Legislation Scrutiny Committee has fulfilled its role in that regard with its customary thoroughness, but that is not to say that I am in agreement with all its conclusions. Section 8 of the Public Bodies Act provides certain criteria that Ministers must consider have been met when making an order under the Act. Taking each of these in turn will give a full account of how the order meets the requirements of the Act.

On efficiency, abolishing the AJTC will remove duplication of functions and ensure that the state provides only what is necessary to support the administrative justice and tribunals system. The reforms of recent years mean that the vast majority of the system is now administered by HMCTS and so is managed independently of the departments whose decisions are being challenged. I believe that this is a vital point. I know that in a debate on the Public Bodies Bill the noble Lord, Lord Pannick, expressed concern that the Government are often defendants in tribunal proceedings. This in no way compromises the independence of the tribunals judiciary which determines cases impartially and acts independently. This independence is also reflected in the governance of HMCTS which has an independent, non-executive chair and has two judicial representatives on its board. It also has a dual reporting line to both the Lord Chancellor and the Lord Chief Justice. For those limited number of bodies that are outside the oversight of HMCTS, Ministry of Justice officials already work with the relevant departments, the bodies themselves and others to identify and share good practice as well as tackle areas of concern. This is an approach that works well. It is solution focused and one that the department is keen to build on.

The Administrative Justice and Tribunals Strategic Work Programme, published in December 2012, sets out the areas on which the Government will focus until 2015. Objectives include improving initial decision-making by government and making systems and processes more accessible and proportionate for users. The noble Lord, Lord Borrie, commented at Report that there will no longer be a group coming together and discussing important issues of administrative justice. The Government listened to such concerns and in May 2012 established the Administrative Justice Advisory Group, which provides an expert and critical forum to review the system from a user perspective against the strategic work programme. The advisory group supports and guides this by informing policy development from the perspective of users of the system. For instance, members from the group contributed to the development of the strategic work programme ahead of its publication. The group is also able to form sub-groups to look at specific issues, such as improving user guidance. To date the advisory group has been chaired by a director from the MoJ. Having reflected on concerns raised by your Lordships’ Secondary Legislation Scrutiny Committee, my right honourable friend the Secretary of State for Justice has decided to appoint an independent chair to the advisory group on abolition of the AJTC. Whoever fills the post will have responsibility for ensuring the group’s collaboration to give robust, evidence-based challenge; building consensus and ensuring that the different representative bodies work together; galvanising action to inform improvements to the system in line with the MoJ’s principles of efficiency, fairness and accessibility; providing strong leadership to the group and representing its views to Parliament; and ensuring that the group delivers on its aims and objectives, as set out in its terms of reference.

On economy, those opposed to abolition have cited the modest or insubstantial savings involved and questioned the estimates provided by the ministry. Let me be clear on both counts: the AJTC currently costs £700,000 per year to operate. While this represents a reduction from its 2010-11 budget of £1.2 million, it is still a significant amount of money at this time. Based on a revised closure date of late August, which allows for a four-week orderly close-down period following parliamentary approval to the order, we estimate gross savings of around £1.2 million across the remainder of 2013-14 and 2014-15. Costs of closure are estimated to be around £0.6 million over the same period. This includes £300,000 for possible redundancies at the AJTC and £300,000 for reimbursements to the Scottish and Welsh Governments for the creation of interim non-statutory bodies to replace the AJTC in Scotland and Wales. This means net savings of around £0.6 million over the rest of this spending review period and, of course, this would represent a long-term saving well beyond the spending period. No further costs are estimated from our successor arrangements. The advisory group is supported using existing resources within the policy group in MoJ. The costs of recruiting and remunerating the independent chair of the AJAG are negligible—some £10,000 to £15,000—and will be met from the budget required to implement policy changes.

I now turn to securing appropriate accountability to Ministers. The abolition of the AJTC will not result in any loss of accountability. Ministers are, and will remain, ultimately accountable for the administrative justice system and for HMCTS as an executive agency of MoJ. HMCTS is responsible for the performance of the unified system. A minority of tribunals sit outside HMCTS and remain accountable to Ministers through their respective departmental channels. MoJ will re-examine the case for bringing these remaining existing tribunals into the unified tribunal system. Where they are not brought into the unified system, MoJ will still, as it does now, keep their administration and performance under review.

On the removal or loss of protections, rights and freedoms, the abolition of the AJTC will not result in the removal of any necessary protection and no person will be prevented from exercising a right or freedom that they might reasonably expect to continue to exercise. Abolition does not prevent anyone from accessing a tribunal or an ombudsman to vindicate or protect their rights or freedoms. Tribunal users can still make their voices heard by raising concerns with their elected representatives or through the user groups that exist in most HMCTS tribunal jurisdictions. Concerns may also be raised by their elected representatives with the Parliamentary and Health Service Ombudsman.

I stress that no part of the administrative justice system currently included under the AJTC’s overview remit will be left out under the new arrangements, including those tribunals and bodies currently outside the unified tribunal system. There is no “hiatus” in oversight as has been mentioned in scrutiny reports. HMCTS’s governance structure, with its strong judicial representation, provides a clear level of protection to the public in respect of its oversight of the unified tribunal system.

Parliament will also have an important role to play in scrutinising the work of the department. In his response to the Public Administration Select Committee report on the future oversight of administrative justice in May 2012, the Lord Chancellor agreed, following the AJTC’s abolition, to report annually to the Public Administration Select Committee on the following: details of the resourcing of the department’s administrative justice function; actions taken by Ministers and officials to improve the operation of the system; details of how the views of users of the administrative justice system have been sought and addressed; and details of work undertaken with other departments, devolved Administrations and local government to improve administrative justice for the citizen. Parliament will therefore have the means of ensuring that the Government are held to account for oversight in this area and provide a further layer of protection for the public.

It is important to have had this opportunity to set out in some detail the Government’s plans for oversight of the administrative justice and tribunals system following abolition of the AJTC. What we propose is about delivering real improvements, based on ministerial priorities and on evidence gathered by capable and experienced officials working with colleagues and experts from other departments and from across the system. We disagree that oversight has always to take place at arm’s length from Ministers and departments. It is absolutely in the interest of government to reduce demand on the system, get decisions right first time and make the system accessible and proportionate to users. This, I think, we are doing. I commend this draft order to the House. I beg to move.

--- Later in debate ---

[Lord Beecham]

My Lords, the amendment in my name would add to the Motion moved by the Minister that,

“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.

I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.

Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.

Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.

The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,

“act independently to establish facts”.

The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.

The Public Administration Select Committee, on the other hand, thought that,

“it could be, and has been, argued that the AJTC in fact meets all three of them”—

a judgment with which I profoundly concur.

The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:

“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.

It concluded that,

“oversight by an entity independent from Government is valuable and should be continued”.

The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,

“believe that the abolition of the AJTC satisfies the statutory tests”,

set out in the Public Bodies Act,

“in respect of efficiency and effectiveness”.

I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,

“that the Government reconsiders its decision to abolish the Council”.

The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.

The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000 cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.

Moreover, as Lord Newton pointed out, administrative justice is not confined to tribunals. It extends to local authorities and important areas of administrative justice,

“including, in education, school admissions and exclusion appeals”.

He went on to say that,

“it also includes the whole area of decriminalised parking … They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice”.

For an essentially gentle man, Lord Newton went even further, declaring:

“The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less”,—[Official Report, 28/3/11; col. 993.]

about these latter issues.

In debates on the Public Bodies Bill and subsequently, Ministers have shifted the basis of their argument to one of cost, yet the amount of the savings they predict are, even on the scale of the MoJ’s budget, let alone public expenditure as a whole, trivial—all of £700,000 a year, as the Minister has confirmed. The council’s running costs have already been reduced from £1.2 million in 2010-11 to that figure.

Where is the evidence that the MoJ, of all government departments, has the capacity to deliver the work hitherto carried out by the council and to press on with the work of improving the system, securing better decision-making and reducing the need for appeals, as opposed to putting obstacles in the way of appeals by withdrawing legal aid and advice or—as in the case of employment tribunals, which we debated last week—imposing fees which will deter claimants from using them? This, after all, is the department responsible for the fiasco of the interpretation service, for the problems of the single court issue of money claims, and for the recently exposed disaster of the electronic tagging contracts. This is the department that is pushing ahead with untested proposals in relation to the probation service and payment by results and which refuses FoI requests for information about pilot schemes that it abandons. Dickens would have rejoiced at the opportunity to satirise a department that combines all the vices of the Court of Chancery in Bleak House and the Circumlocution Office of Little Dorrit.

There is a more fundamental point. How can the Government, who are enacting legislation, promulgating regulations and changing structures in these important areas of administrative justice, and at the same time hugely reducing legal aid and advice, justify the absorption of an independent body with a remit to oversee the whole system and advise government? The Administrative Justice Advisory Group, which the department has set up, is in no way a satisfactory alternative, having, in the words of evidence given to the Public Administration Committee, no status, standing or budget of its own. It lacks a chairman and a secretariat, it is dependent on MoJ policy staff and it meets only twice a year.

What is the Government’s response to the nine recommendations made in the final report of the AJTC on ways to,

“maximise the robustness of this body”,

which, at the moment, has all the attributes of a watchdog equipped with neither bark nor bite? What is the position of the devolved Administrations in Scotland and Wales? Hitherto they have been represented on the AJTC. Will they establish their own councils once the AJTC disappears and, if so, what will be their relationship to the MoJ on areas of administrative justice covering non-devolved matters such as welfare or employment law?

The House will wish to pay tribute to the members and staff of the council who have been on organisational death row for three years but have managed to continue to discharge their responsibilities with exemplary fortitude. It is worth quoting further from the final report. It refers to the predicted nearly 100% increase in First-tier Tribunals for social security and child support to 807,000 cases a year by 2015-16 as illustrating the pressures with which the system will have to cope, exacerbated by the wholesale reduction of access to legal aid and advice, which we have so often debated.

The council questions, with reason, whether HMCTS, which is reducing the publication of performance data, is able to or has the independence to monitor performance. Its final report poses several questions about the role of HMCTS. I will quote from that report. The AJTC rejects,

“any suggestion that HMCTS is independent of government. HMCTS is not a judicial body”—

although it may have judicial representatives upon it—

“and it does not operate on an arms-length basis from its sponsor department. Rather, we believe that HMCTS as an executive agency of the Ministry is ‘as much part of government as the MoJ itself’, with MoJ Ministers being accountable within Parliament for what HMCTS does in the same way as they are for what their departmental officials do”.

The council concedes that,

“the constitution of the HMCTS Board provides some independence in the governance of the agency”,

although not its role. The council points out that,

“whatever the correctness of our view on the independence of HMCTS, such is not relevant to the separate question of the existence of and need for a body to offer independent advice to government, which is currently offered by the AJTC and in future could only possibly be offered by”

the advisory group, with all the limitations to which I have referred. The council raises a series of other points about the performance and the future of HMCTS, which are surely germane. The council makes the point that:

“The task therefore of ensuring effective scrutiny will be many times more difficult in future than it has been … Cutbacks in the availability of advice and legal aid and the introduction of fees … are likely to act as even greater barriers and disincentives to redress than restrictions in the availability of judicial review”—

about which there is also great concern—and, tellingly, that there are,

“disturbing signs that MoJ explicitly sees the use of fees as a mechanism to reduce demand on the tribunals system”.

Can the Minister deny these serious charges?

I conclude with a final quotation from the council:

“There is an inevitable risk that those who have access to the levers of power may yield to the temptation to use them to exclude or restrict challenges. And even if that temptation on occasion is resisted there will always be the suspicion that it may not be resisted on others. Effective oversight is necessary both to ensure that temptation is resisted and also to create confidence amongst citizens that it will be”.

I wholly endorse that view and I suspect that I am not alone. I beg to move.

[Lord McNally]

My Lords, considering that this is the third time today that the noble Lord, Lord Beecham, and I have faced each other across the Dispatch Box—admittedly the other two times were in the Moses Room—he is in fine and feisty form. But his speech revealed what I think is the abiding problem of the Labour Party when looking at these matters: savings are always trivial and can be dismissed; always look for the firewall of a committee to get between a Minister and responsibility; and, if in doubt, appoint a consultant or, even better, a tsar. It is a philosophical difference between us. I really do believe that this is where responsibility lies and that the effective oversight he called for should be oversight in Parliament by parliamentarians to Ministers at the Dispatch Box. We will have to disagree on some of these matters, but I will try to answer a number of the points that he made.

The noble Lord mentioned the AJTC’s report on the Future Oversight of Administrative Justice. This final report was published on 17 July and the department has not yet fully considered the recommendations in detail. However, we thank the council for its constructive recommendations. We are already tackling many of the issues raised, such as the need for good-quality information and signposting, and the Right First Time agenda. We also welcome the AJTC’s invitation to parliamentary committees to take an enhanced role in scrutinising the work of the department in this area. We will consider the report’s recommendations as we progress our strategic work programme and build on the principles of fairness, efficiency and accessibility.

The noble Lord also asked about administrative justice in reserved sectors in Scotland and Wales. We are focused on ensuring that users of the system can expect consistency of service and adjudication, no matter where they access it. The MoJ has agreed to support the Governments in Scotland and Wales to complete their reform programmes. We believe that the change in approach will be beneficial to users by encouraging closer working between the bodies actually responsible for developing policies and implementing reforms. We have draft formal protocols between the UK Government and each of the devolved Administrations to oversee the system. These will include examining and addressing issues for users in Wales, Scotland and Northern Ireland accessing reserve tribunals.

Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013

Lord McNally Excerpts

Wednesday 17th July 2013 Lords Chamber

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

I think there is a line in TS Eliot that says, “Woe unto me when all men praise me”.

This debate gives me the opportunity to clarify the position in the regulations laid before the House on 7 March concerning the issue of capital in relation to financial eligibility for civil legal aid. I will certainly respond to the debate, as I did last Thursday. In fact, I reread the debate and my reply. I think that I covered most of the points raised by the 14 lawyers and two others who contributed to that debate.

The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 set out the rules that the director must apply to determine whether an applicant’s financial resources are such that the applicant is financially eligible for civil legal services under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. These regulations broadly replicate the effects of Parts 1 and 2 of the Community Legal Service (Financial) Regulations, which were made under the Access to Justice Act 1999. Indeed, a number of the points that were raised tonight were in complaint of parts that replicated that Act.

However, as part of the Government’s consultation in 2010, entitled Reform of Legal Aid in England and Wales, the Government proposed several changes to the rules concerning financial eligibility and contributions for civil legal aid. One of these changes was the removal of capital passporting. Two others were to cap the subject matter of the dispute disregard at £100,000 for all forms of civil legal services, and to increase the levels of income-based contributions to a maximum of 30% of monthly disposable income. Before 1 April, someone receiving certain income-based benefits, such as income support, could have up to £16,000 disposable capital but be automatically passported through the means test and be deemed eligible for legal aid. However, a person not receiving a passporting benefit, and who had more than £8,000 in disposable capital, would be ineligible for legal aid.

It is inequitable that applicants with similar levels of capital may or may not be eligible for legal aid depending on the source of their income. To achieve greater internal alignment and fairness to all applicants for legal aid, the Government proposed that in future people in receipt of passporting benefits should have their capital assessed in the same way as it is assessed for others, although they would still be passported through the income side of the test.

The Government’s response to that consultation in June 2011 confirmed that they would take forward the proposal, and this is reflected in these new regulations. Therefore, under the new rules, all applicants for civil legal aid are subject to the same capital eligibility test. This means that any applicant with disposable capital above £8,000 will be ineligible for civil legal aid, regardless of whether they are in receipt of benefits. If the applicant’s disposable capital is more than £3,000 but does not exceed £8,000, they will be required to make a contribution from that capital towards the costs of the legally aided services.

Ensuring that the capital assets of all applicants are subject to the same eligibility test helps to focus limited public legal aid funds on the most financially vulnerable clients and means that those who can afford to pay, or can contribute towards the costs, do so. It is estimated that assessing all applicants’ disposable capital will result in approximately £10 million a year of savings in steady state. This is not insignificant against a backdrop of continuing pressure on public finances, where we need to continue to bear down on the cost of legal aid to ensure we are getting the best deal for the taxpayer. Disposable capital comprises all capital assets, including equity in land and buildings, money held in a bank, investments, stocks, shares and the monetary value of valuable items. However, there are certain disregards in calculating the amount of an individual’s disposable capital, including for mortgages and for equity in an individual’s home.

It may be helpful if I explain what these are. If an applicant is contesting property with their partner, their share of capital is assessed individually. Any outstanding mortgage, up to the value of £100,000, is subtracted from the value of the property. Where assets are in joint names, they will generally be treated as owned in equal shares. Thus the remaining equity is divided equally between the parties. The first £100,000 of the applicant’s equity is then disregarded under the subject matter of the dispute rule. The applicant then receives a further £100,000 equity disregard if the property is their main dwelling. If the remaining equity exceeds the £8,000 capital limit, the applicant will be financially ineligible for legal aid.

In practice, this means that only those applicants who are contesting large amounts of capital, or homes registered in joint names that are valued in excess of £500,000, and where there is a mortgage of at least £100,000, are excluded on capital grounds. We do not think it unfair or unreasonable that people who are disputing substantial assets fall outside eligibility for civil legal aid.

Where a property is not the subject matter of the dispute, is in an applicant’s sole name and worth more than £208,000, that applicant would not normally be eligible for legal aid. However, a further disregard of up to £100,000 would apply if the applicant was aged 60 or over and had monthly disposable income of less than £315. The financial eligibility criteria for civil legal aid are designed to focus our limited resources on those of moderate means and with moderate amounts of capital. This helps to ensure that we can continue to provide services for vulnerable persons, such as victims of domestic violence, children at risk and those with mental health problems.

For domestic violence and forced marriage cases where the applicant seeks an injunction or other order for protection from harm to the person, or seeks committal for breach of any such order, there is a power to disregard the eligibility limits. In this way, we extend eligibility to legal aid for victims of domestic violence irrespective of the value of any property that the individual may own. A contribution may be required from income or capital.

The eligibility waiver for victims of domestic violence seeking protection from harm is a significant concession. This measure improves access to legal aid for domestic violence victims by extending eligibility beyond the original limit. It means that immediate legal advice and representation is available for those who need it and who otherwise would not qualify under the normal eligibility regulations. For those applicants required to pay a contribution, as legally aided clients they will benefit from the reduced cost of representation under legal aid rates as opposed to private rates.

There is a concession for pensioners who are in receipt of an income of £315 a month or below. Disregards of between £10,000 and £100,000 can be applied to any capital assets that they hold, including both property and savings, depending on the level of their income. For example, a monthly income of £76 to £100 attracts a capital disregard of £70,000. This is in addition to the allowances that normally apply, such as the equity disregard. Pensioners who receive a passporting benefit are entitled to the maximum disregard of £100,000.

The financial eligibility criteria for civil legal aid are designed to focus our limited resources on the poorest people. Bringing the capital rules for those receiving benefit into line with the rules for those who are not will help to do that, and will improve the fairness of the system. The substantial provision for disregards that I have outlined will ensure that an appropriate degree of sensitivity to individual circumstances is maintained, in particular as regards capital in the form of equity in the home. This is a sensible and reasonable measure.

The noble Lord, Lord Bach, made a number of points about the difference in the capital tests. Legal aid is not a welfare benefit and should not necessarily be treated in exactly the same way as universal credit, which is a working-age benefit. This is reflected in the different functions of income support and legal aid. The former is intended to lift people out of poverty over the long term while not penalising people for saving, while the latter is for people required to deal with a short-term legal issue and the associated expense.

The noble Lord, Lord Pannick, said that our LASPO reforms have reduced legal aid to skeletal proportions. I remind the House that we are talking about an exercise that has brought legal aid down from £2.1 billion to £1.5 billion. Neither the noble Lord, Lord Bach, nor the noble Lord, Lord Pannick, do their case any good by pretending that a system that will still spend something like £50 million on welfare legal aid and £1.5 billion in total can be described as “skeletal”. The noble Lord, Lord Bach, said how generous the Labour Government were in 2009. In 2010, we had to take some very tough decisions. Again, I question whether the noble Lord, Lord Bach, has any authority to encourage us to believe that in 2015 a Labour Government would try to restore any of these changes to legal aid.

I hear what was said by the right reverend Prelate and the noble Baroness, Lady Deech. However, they do not do the cause that they espouse—desiring to help the poorest and most vulnerable in our society—any good by arguing that these changes, which will affect people with quite substantial assets behind them, are not the right priority in the circumstances in which we find ourselves. The noble Baroness, Lady Deech, mentioned litigants in person. We are monitoring the impact of litigants in person. However, as I pointed out to the noble Lord, Lord Bach, in a more recent exchange we had, LASPO has been in practice for just over 100 days. He has been forecasting perfect storms and disaster for at least a year. We are keeping a close eye on these things and will monitor these various issues. However, the constant argument of disaster does not serve anybody. The very first Statement I made from this Dispatch Box was to the effect that if a part of your spending is directed at the vulnerable and the needy and you cut it, of course you will affect the vulnerable and needy. In those circumstances we have tried to make sure that we concentrate the money we have available where it is most needed. I will have a look at the Social Fund disregard and will write to the noble Lord—unless it was in that bit of paper that was passed to me. Even if it was, I will write to him.

This has been an interesting debate. The modest changes that we have made to the financial eligibility rules for civil legal aid are consistent with the fundamental objective of our reforms. We need to continue to think carefully about how taxpayer-funded money is spent and focus legal aid on the highest-priority cases and those most in need, while delivering the savings needed to address the national financial deficit. I hope that I have covered most of the questions raised in the debate, and I hope that the noble Lord, Lord Bach, will agree to withdraw his Motion.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate, in particular the Minister for the trouble he has taken to respond to the debate. I am grateful to all noble Lords, particularly the noble Lord, Lord Pannick, for his extraordinarily flattering remarks, which were somewhat exaggerated. However, it was very good also to hear from the noble Baroness, Lady Deech, and from the right reverend Prelate the Bishop of Norwich; the Government should listen with some care to the remarks that he made. I am grateful, too, as always, to my noble friend Lord Beecham for summing up the Opposition’s view so clearly and crisply.

We should remember that we are discussing areas of law where the Government decided that legal aid should continue, not those areas of law where they thought that legal aid was completely meaningless or was not legal or appropriate. These are areas where people’s need for legal aid is acute: for instance, housing repossession, domestic violence or community care. With these regulations the Government have said on the one hand, “These are the areas where legal aid is appropriate”, but on the other, “Those of you who may be poor in income terms but have a small amount of capital cannot take advantage of where we are keeping legal aid in scope”.

That is not a satisfactory position for the Government to take. To say that what has been taken out of legal aid—particularly out of social welfare law—is skeletal seems to be an overstatement rather than an understatement when we look at what is left in scope compared with what has been taken out, which includes all welfare benefit social welfare law, all employment social welfare law, the vast majority of housing social welfare law and nearly all debt social welfare law. The word “skeletal” is not wrong at all.

Legal aid is part of our welfare system and should be so. It is part of our social security system and a protection for all our citizens, or so it ought to be. That was the idea when it was first formulated—an idea that has grown up with Governments of all persuasions over the past 60 years. It is a great shame to hear the Minister say that it can be completely divorced, as it were, from the rest of the social security system. It cannot be: it remains a protection for all of us.

These regulations make the position more complicated, more costly, more unfair and more inflexible. That is not satisfactory. Of course, I am tempted—as I always am—to divide the House on the issue. Noble Lords have spoken in pretty clear terms of what is felt around the House. However, the House has probably voted quite sufficiently in the early part of this evening. We have had the debate and will be able to read it in Hansard. I have no doubt—I know that the Minister will look forward to this—that we will come back to these issues in due course, but probably after the summer rather than before. I beg leave to withdraw my Motion.

Whole-life Sentences

Lord McNally Excerpts

Wednesday 17th July 2013 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what is their response to the decision of the European Court of Human Rights in the case of Bamber and others v United Kingdom.

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

My Lords, the Government are disappointed with the court’s ruling. We are making a full analysis of the judgment and will provide our considered response in due course.

[Lord Lloyd of Berwick]

My Lords, the noble Lord will be aware that the Grand Chamber of the European Court of Human Rights recently decided by 16 votes to one that the 49 prisoners currently serving whole-life sentences in the United Kingdom are entitled to a review after 25 years. A review does not mean that they will necessarily be released. Can he confirm that whole-life prisoners had always been entitled under our law to a review after 25 years until they lost that right in 2003, it seems almost as a result of an oversight? Will he therefore ensure that the right to a review after 25 years is restored to all our whole-life prisoners as soon as possible in accordance with the court’s decision?

--- Later in debate ---

[Lord McNally]

My Lords, first, I am grateful to the noble and learned Lord for setting out the chronology very accurately. The right to review was there until 2003. Whether its removal was by an oversight, I do not know, but removed it was. All that I can say about the court’s judgment I said in my Answer—we are analysing it and will provide a considered response in due course.

[Lord Thomas of Gresford]

Are the Government aware that the suggestion made by the noble and learned Lord, Lord Lloyd, was part of the judgment of the British member of the court, Judge Mahoney, who unreservedly subscribed to the conclusions and reasoning of that judgment? Ought not the Government give extra weight to the views of the British judge in that regard?

[Lord McNally]

My Lords, I am not sure whether in an international court one would take cognisance of one judge over another—I am not sure of the protocol of such courts. I do know that it was a considered judgment that merits careful study by the Government, which is exactly what we are doing.

[Lord Morgan]

My Lords—

[Lord Morgan]

My Lords, does not this judgment raise the very important legal principle of rehabilitation? It does not say that whole-life prisoners should be released or that the British Government should take any action, but it does suggest that they retain what the court called the right to hope, the possibility of atonement and the possibility of a review, as in many other countries. Is this not a very serious issue of penal philosophy that should be considered as such?

[Lord McNally]

My Lords, I fully agree with the noble Lord, and I think that both interventions have helped to clarify something that is not necessarily clear in coverage by the media. This judgment did not say that anybody should be released immediately or that whole-life tariffs may not be imposed, but it did say that we should look at such sentences in the light of what was described as penological purpose—punishment, rehabilitation and prevention. The court held that the system in England and Wales, which provides only for compassionate release, was not sufficient.

[Lord Elystan-Morgan]

My Lords, does the Minister accept—

--- Later in debate ---

[Lord Tebbit]

My Lords, can my noble friend perhaps read out a list of the names, nationalities and legal qualifications of the judges who interfered in our affairs?

[Lord McNally]

I think the best thing that I can do is place a list in the Library. Over the years, the court has held against Britain in about 3% of cases. During that period, we have had the great benefit of being part of a continent-wide concept of upholding human rights, of which we should be proud.

[Lord Elystan-Morgan]

Does the Minister accept that implementing faithfully a decision of the European court is not a peripheral luxury but something that binds us in law and in honour, and that the greatest architect of this institution was in fact Sir Winston Churchill?

[Lord McNally]

There are a number of architects; Sir David Maxwell Fife was a notable originator. However, what the noble Lord said is absolutely right. That is precisely why, given the importance of this judgment, we intend to give it a full analysis and will provide our considered response in due course.

[Lord Tomlinson]

Does the Minister agree that we do incredible damage to our international reputation for upholding the rule of law when, every time we get a judgment from the European Court of Human Rights, there is a knee-jerk reaction from Members in another place, calling for us to abrogate our responsibilities under the European convention?

[Lord McNally]

My Lords, that is why my Answer to this House is that we are making a full analysis of the judgment and will provide our considered response in due course.

Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013

Lord McNally Excerpts

Monday 15th July 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013.

Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Statutory Instruments.

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

My Lords, that is enough radicalism for one afternoon.

This order abolishes the Victims’ Advisory Panel, which I will refer to as the VAP, using powers in the Public Bodies Act 2011. This Act followed the 2010 review of all arm’s-length bodies, which was conducted to increase transparency and accountability, to cut out duplication of activity and to discontinue activities that were no longer required.

As part of this review, we proposed to abolish the VAP, since its functions are no longer required and duplicate activity elsewhere. There is a clear overlap between the work of the panel and that of the Commissioner for Victims and Witnesses, also known as the victims’ commissioner, who has a statutory responsibility for promoting the interests of victims and witnesses and encouraging good practice in their treatment. That is why the VAP is one of the bodies specified in Schedule 1 to the Public Bodies Act 2011. The Secretary of State has the power to abolish those bodies by order, and it is such an order that we are debating today.

I will now cover briefly the background to the establishment of the VAP and the panel’s membership between 2006 and 2009, before explaining why the Government consider that this order to abolish the VAP is necessary and meets the criteria set out in Section 8(1) of the Public Bodies Act to improve the exercise of public functions.

The VAP was originally established in 2003 as a non-statutory panel to enable victims of crime to have their say, both in the reform of the criminal justice system and in related developments in services and support for victims of crime. The functions of the VAP were subsequently set out in Section 55 of the Domestic Violence, Crime and Victims Act 2004. The VAP was expected to advise Ministers and officials of the views of victims of crime, with particular reference to their interaction with the criminal justice system and its agencies. The panel was also to offer views on the prevention of crime from a victim’s perspective. The Secretary of State was required to consult the panel on appropriate matters concerning victims and witnesses of criminal offences or anti-social behaviour. Where the Secretary of State consulted the VAP in any particular year, the panel was expected to prepare a report to be published and laid before Parliament.

The Coroners and Justice Act 2009 made it a requirement for the victims’ commissioner to be appointed to, and act as, chair of the panel. The Act made no changes to the core functions of the VAP. Between 2006 and 2009, the VAP consisted of around 10 volunteer members, all of whom had either experienced crime first-hand or had provided support to victims. Of those original members, four agreed to extend their tenure beyond July 2009 to support the work of the Government and of Sara Payne as the victims’ champion, until the first victims’ commissioner, Louise Casey, was appointed in May 2010.

I thank the Secondary Legislation Scrutiny Committee for its report on this order. I welcome its conclusion that this order does serve the purpose of improving the exercise of public functions and is in compliance with the test set out in the 2011 Act, which I will set out in detail shortly.

I reassure the Committee that the Government did not prejudge the process by winding down the panel before the 2011 Act came into effect. As Louise Casey announced her decision to resign as Commissioner for Victims and Witnesses in October 2011, during the consultation on our public body reforms, the Government considered that the future of the commissioner’s role should be decided before taking a decision on the future of the VAP. Accordingly, no final decision was made on the abolition of the VAP until it was clear that a new commissioner would be appointed. While the Government decided not to undertake any further recruitment to the panel during the uncertainty around the panel’s future, this did not prevent potential future recruitment if necessary.

With the appointment of a new victims’ commissioner, who has a statutory duty to promote the interests of victims and witnesses, we consider that a statutory obligation to appoint and consult a small advisory panel on victims’ issues is no longer the right approach. The commissioner provides an effective and flexible approach to ensure that a broad and diverse range of victims’ views is independently represented to government.

The noble Baroness, Lady Newlove, the current victims’ commissioner, took up her post on 4 March of this year following her appointment on 21 December 2012. She has already met many victims and their families across England and Wales, as well as the criminal justice agencies, to seek their views. This follows the work of Louise Casey, the previous commissioner, who undertook a wide remit of consultation and provided advice and challenge to government concerning the treatment of victims and their families and the services they received.

Given the role now played by the victims’ commissioner, we consider that the abolition of the VAP improves the exercise of public functions for the purpose of Section 8(1) of the Public Bodies Act 2011, such that making this order is justified. I say this for the following reasons.

First, on efficiency, abolishing the VAP will reduce the duplication of resources and activity in respect of convening panels and their administration. The victims’ commissioner will undertake a wide range of activities designed to engage the views of victims. This allows for a much greater breadth and depth of views to be obtained, which the commissioner will feed back to government and its agencies on a regular basis to inform and shape policy development and service delivery for the benefit of victims.

Secondly, on effectiveness, the abolition of the VAP will not limit the opportunity for victims to articulate their opinions about the criminal justice system and their position within it. The post of victims’ commissioner is an effective way of ensuring that the views of victims are sought and can influence the development of justice policy. During her tenure, the previous commissioner, Louise Casey, met and received correspondence from hundreds of victims who shared their views and experiences. She used this feedback to inform her advice to government, including reports and a review of the needs of families bereaved by homicide.

Thirdly, on economy, the abolition of the VAP will mean that the Government will not need to recruit and run a new panel, which has in the past cost about £50,000 a year. We believe that this additional spend is unnecessary, given that the work which the panel previously undertook clearly falls into the remit of the victims’ commissioner.

Fourthly, on securing appropriate accountability to Ministers on issues relating to victims and witnesses, this still remains through the role of the victims’ commissioner. The victims’ commissioner promotes the interests of victims and witnesses, as is her statutory duty, and is accountable to the Secretary of State for Justice. The commissioner is required to produce an annual report for the Secretary of State for Justice in her role and the work that she has undertaken, to be shared with the Attorney-General and Home Secretary, which is published and laid before Parliament.

Further, we are satisfied that the abolition of the VAP, for the reasons already stated, does not remove any necessary protections. Abolition of the panel does not affect the exercise of any legal rights or freedoms either directly and indirectly. Victims of crime will be able to have their voice heard through the channels operated and promoted by the commissioner and the Government.

The victims’ commissioner regularly meets the Minister for Victims and the Courts and the Secretary of State for Justice. She has publicly stated that she sees her role as providing challenge to government where the criminal justice system or proposed reforms to it fail to meet the needs of victims and their families, as well as working with the Government to improve the criminal justice system.

The appointment of the noble Baroness, Lady Newlove, as the new victims’ commissioner last December was a key part of this Government’s wider commitment to strengthen the voice of victims and to improve the experience of victims and witnesses in the criminal justice system. For example, we have consulted on a revised victims’ code, which includes reference to the victim personal statement for the first time giving victims a louder voice in criminal proceedings. The victims’ commissioner plays a leading role in ensuring that as we deliver these reforms the voice of victims and witnesses is represented to government. I know that the noble Baroness, Lady Newlove, has confirmed in a letter to noble Lords circulated ahead of this debate that she considers the victims’ commission to be best placed to promote victims’ and witnesses’ needs and to represent their views to government. I hope noble Lords will agree with the current victims’ commissioner that the victims’ commissioner is able to fulfil this role fully and effectively without the VAP, a body that duplicates her activities. I beg to move.

[Lord Beecham]

My Lords, public outrage about the abolition of the Victims’ Advisory Panel has been conspicuous by its absence, and the Opposition and I have no qualms about the Government’s decision to abolish it in the light of the appointment of successive commissioners. For that matter, all of us who heard it were deeply moved by the speech made by the noble Baroness, Lady Newlove, on these issues; I think it was her maiden speech. We have every confidence in her interest, palpably stemming from those tragic personal circumstances to which she referred, and her ability to be an effective voice for victims and a conduit to government.

However, I note that in the Explanatory Notes to the order the Government cite three criteria which they purport to apply to all bodies that are being considered for abolition and find that none of the criteria were met in this case, including a requirement for political impartiality. Having said that, and I repeat that this is no reflection on the noble Baroness, I find that a slightly surprising conclusion in respect of this position because there are potentially significant issues in this area, such as restorative justice, community sentencing, which is now very much part of the political debate under the Offender Rehabilitation Bill, and criminal injuries compensation, which is a sensitive political issue where changes were recently made. No doubt the commission will comment on all these in due course. However, despite the unique qualifications of the noble Baroness, it might be thought to be better in future appointments to have somebody who is less engaged with the political process.

That view is somewhat reinforced by a recent article in the Law Society Gazette, which records that it thought that the views of the commission should be sought about some of the matters that are currently being debated, including the impact of the Transforming Legal Aid proposals on victims and witnesses and concerns about defence work or prosecution work being carried out by, as it put it, inadequate prosecutors. It approached the commissioner—it e-mailed her—and got a telephone call back saying that she had not commented. That was fair enough. The caller repeated that the issue had not been commented on, and matters were left there. However, it turns out that the person at the other end of the phone was a press officer at the Ministry of Justice. This gives rise to the question whether the staffing and support for the commissioner—any commissioner, not just the present incumbent—should be a little further removed than the Ministry of Justice, which of course is responsible for many of the issues with which the commissioner will have to deal.

I do not raise this in a way that is critical of the noble Baroness, but it raises the issue that future appointments need to be considered. The way in which resources are made available to the present commissioner might be looked at again, given that she may feel called upon from time to time to be critical of the policy of the Government of the day, and to have someone working on that line from within the department might be a little difficult. I put it no higher than that. Perhaps the Minister might care to consider that issue in due course with this commissioner, and perhaps it should be borne in mind with future appointments. We are content that the order should be passed.

[Lord McNally]

My Lords, I am slightly surprised that the noble Lord raised the question of political appointments, even in the terms in which he couched his remarks. I find it extraordinary that somehow we back away from making appointments from the rich vein of political talent that is in the House. The idea that someone has to be politically neutral to be a victims’ commissioner is, I think, absurd. I can think of some likely Members on Labour Benches, including the noble Lord, who would make an excellent victims’ commissioner. The noble Lord is tempting me to express my views on the Cross-Benchers. I have always said that I find it extraordinary that people can reach 60 or 70 years of age without deciding about their political opinions, but that goes way beyond this brief.

I do not accept the idea. As the noble Lord conceded, in the choice of the noble Baroness, Lady Newlove, we have somebody who has tragic personal experience but beyond that has revealed a capacity to campaign on this issue and link with the victims of crime, which makes her an excellent choice.

I have more sympathy with the noble Lord’s idea that if you ring up the victims’ commissioner and get an MoJ press officer, that probably needs to be looked at. We are, for very good reasons, bringing within the MoJ family various bodies that carry out independent and arm’s-length functions. How we handle that is important. We must make sure that to the public dealing with them, the arm’s-length nature of their independence is underlined, while we get the benefit of the kind of back-office co-ordination that makes sense of these things.

The basic point is that we have already brought forward a range of measures that are designed to ensure that the voice of the victim is strengthened. These include consulting on a new victims’ code, which includes an entitlement for victims to give a victim personal statement when they give evidential witness statements for the first time, ensuring that the victim can describe how the crime has affected them; and announcing the piloting of a recorded pre-trial cross-examination of vulnerable and intimidated victims and witnesses to help them give their best evidence in court. As I have said, the appointment of the noble Baroness, Lady Newlove, as the victims’ commissioner gives victims a national voice and has, as the noble Lord, Lord Beecham, said, cross-party approval.

I understand that the noble Baroness has press office support as victims’ commissioner and has a dedicated press officer who works part-time. However, that press officer is based in the MoJ. Whether that has caused the confusion or the call was from part of the MoJ press team, I do not know; I have only just heard the point made. The press support which the noble Baroness will receive is fully independent of the MoJ, although it is within our building. I appreciate the noble Lord’s point—it will be duly recorded and pondered upon—and I am grateful for his more general support for this action. I commend the order to the Committee.

Motion agreed.