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.

Legal Aid

Lord McNally Excerpts

Thursday 11th July 2013 Lords Chamber

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

My Lords, it is important that I put on the record the Government’s point of view in this important debate, so I will not be able to follow the usual courtesy of a detailed response to the many individual points and questions raised. However, I will treat the Hansard of this debate as an input into the consultation under way, and I will see whether I can cover some of the specific points raised in an omnibus letter that we will circulate to noble Lords.

First, I, too, congratulate the noble Baroness, Lady Deech, on securing a debate on this important subject. It has attracted a speakers list of great experience and expertise, and the debate as a whole has been a major contribution to what I emphasise is a consultation still in progress. This debate and the consultation that has initiated it take place against a background of two inescapable realities. The first was stated by the noble Baroness, Lady Deech, herself when she spoke in the debate on the gracious Speech on 9 May. She was also quoted today by the noble and learned Lord, Lord Hope. She said:

“It is self-evident that there cannot be a bottomless fund for legal aid”.—[Official Report, 9/3/13; col. 101.]

The second reality was made clear by the noble Lord, Lord Carter, in his review of the procurement of legal aid conducted in 2006. He said:

“A healthy legal services market should be driven by best value competition based on quality, capacity and price. All three of these factors should lead to the restructuring of the supply market”.

Of his own proposals, he said:

“The emphasis of the proposals has been upon providing incentives for firms to structure their businesses in such a way that legal aid services can be procured more effectively, and that the service is delivered more efficiently”.

It is therefore no surprise that previous Governments wrestled with this issue.

The establishment of the Legal Services Commission in 1999 reformed the part of the system which funds legal aid services but not the part which delivers them. Costs continued to increase, giving rise to several series of fee cuts. The case for reform was certainly enough to persuade the Opposition to include a commitment to find greater savings from the legal aid scheme in their 2010 manifesto. Their consultation document, Restructuring the Delivery of Criminal Defence Services, published earlier that year—this was quoted by the noble Lord, Lord Faulks—said:

“Currently the criminal defence service is highly fragmented, with a large number of small suppliers and relatively few large suppliers”.

The need for reform of legal aid-funded services in order to deliver a cost-effective, sustainable legal aid scheme is well established, but it is not the only driver for reform of the legal professions. Changes in technology and its increasingly fundamental role in the functioning of the criminal justice system demand the kinds of changes to working practices and business models seen throughout the public and private sectors. The introduction of alternative business structures, Jackson reforms and an increasingly well informed customer base are all examples of changes which present their own challenges that the legal professions must meet. Those changes are accompanied by the brutal fact that the number of businesses providing criminal legal aid services now vastly outstrips demand for such services.

The realities have been gathering force and relevance for decades, so it is absurd for the professions to claim that they have been bounced by a short and ill considered consultation. When I first came into this office in 2010, the Bar Council was starting to consider ways to restructure the way that it delivers its services. It was looking at what it called procure co-type organisations. I had a very interesting discussion with the then chair of the Bar Council about its vision for the future of the Bar. I understand that work to explore such arrangements ceased at the request of senior members of the Bar due to concerns that it would aid the Government in introducing competitive tendering. We want the Law Society and the Bar Council to engage with changes which are in many cases inevitable.

The Government recognise that the services the professions deliver are a vital component of our legal system and ensure access to justice and equality before the law. We recognise that the independent judiciary—perhaps the most critical element of our justice system—could not survive without drawing from the pool of talent that the professions create.

However, alongside the need to ensure access to justice and a healthy, sustainable legal sector, the professions must also recognise that the Government are entitled to seek the best possible value for money from the legal aid budget. The coalition’s programme for government made a commitment to review the legal aid scheme with the aim of finding savings, culminating in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This will have removed around £320 million from the legal aid budget by 2014-15—largely, as has been explained, from the civil legal aid budget—as well as strengthening accountability and introducing a more rigorous approach to financial management by creating the Legal Aid Agency.

However, the current financial climate means that it is necessary to look again at everything that the Ministry of Justice is doing, including in relation to legal aid, in order to make further savings, particularly in respect of criminal legal aid. This was the focus of the consultation, which has recently concluded, and the aim is to further reduce the legal aid spend by around £220 million by 2018-19.

The consultation, published in April, included a proposal to move to a model of price-competitive tendering in the criminal legal aid market. Conscious of the professions’ objections to the principle of “one case, one fee”, we proposed to exclude criminal advocacy from the competition model, instead proposing to restructure the Crown Court advocacy scheme. Being mindful of the great disparity in the level of fee income received by advocates for Crown Court work, our proposals would rebalance fee income so that those at the top end took the greatest reduction and the lower earners the least. Indeed, some lower earners may see a small increase in their fee income.

Alongside this, we sought to further increase efficiency by proposing a sensible reduction in the use of multiple counsel. To ensure public confidence in the level of expenditure on the longest and most expensive cases, as well as delivering the necessary savings for the legal aid scheme, we propose to reduce the rates paid for criminal, very high-cost cases by 30%. We have also included some small but important reforms to civil legal aid and expert fees to ensure that these, too, are fair and proportionate, and consistent with those paid for similar work elsewhere.

Our proposals also seek to address a number of issues where the savings may be small but we believe that the impact on public confidence in the legal aid scheme is significant. We propose to reduce the scope of prison law cases funded through legal aid, directing less serious matters to the internal prisoner complaints process. The prisoner complaints system was updated in 2012 and has recently been audited with a review of the adequacy, effectiveness and reliability of controls over prisoner complaints, with no significant concerns identified. Criminal legal aid will remain for a significant number of cases where liberty is at stake, such as parole hearings, or where there is a risk of extra days being added, such as in disciplinary cases.

By proposing a Crown Court eligibility threshold, we are ensuring that those who have the means to pay for their own defence do so. By setting it at twice the average household disposable income, we have ensured that it is fair.

In introducing a residence test, we seek to ensure that civil legal aid expenditure is targeted at those who have a strong connection to the UK. As with other public services, legal aid is paid for by UK taxpayers and we do not believe that it should be provided to those who have never set foot in this country or whose connection is tenuous.

We have already proposed an exception for asylum seekers in recognition of their particular vulnerability—

[Lord Carlile of Berriew]

My Lords—

[Lord McNally]

No, I am not giving way. I am sorry. I have five minutes left. It is a time-limited debate and the noble Lord has had his time.

[Lord Carlile of Berriew]

Will the noble Lord answer the debate?

[Lord McNally]

I am answering the debate.

We have already proposed an exception for asylum seekers, in recognition of their particular vulnerability, and made clear that persons who did not meet the test would be entitled to apply for exceptional funding. We have heard the concerns raised during the consultation and in today’s debate in respect of the impact of the test on other groups of people or types of cases. We will reflect carefully on these points before making any further decisions.

We recognise judicial review as an important tool of redress which balances the power of the state. We continue to believe that it is important to make legal aid available for most judicial review cases. Under this proposal, legal aid for the earlier stages of a case would not be affected. Payment would continue as now for work to investigate the strength of a claim or to engage in correspondence as required by the pre-action protocol. This is important as many cases will settle or conclude at this point without issuing an application, avoiding further costs to the legal aid scheme, the courts and public authorities. However, we are concerned that legal aid is sometimes treated as a resource to further pursue weak cases that have little effect other than to waste taxpayers’ money. We do not think it is fair for taxpayers to pay the bills for weak cases that have little effect other than to incur costs for public authorities and the legal aid scheme. We set out our initial assessment of the impact of the proposals along with the consultation paper and invited consultees to comment on the extent and range of those impacts and set out any concerns that they had in this regard. We are now carefully considering all responses and the issues that they raised.

Much of what has been said about our proposals on price competition has quite simply been false. The debate has been dogged by a baffling conflation of the Government’s intention to manage the criminal legal aid scheme, through around a quarter of the current number of contracts, with a mythical intention to see only around a quarter of the present number of firms. Some of the rhetoric has risked misleading the public that legal aid would no longer be available. However, the professions have made clear their views on the importance of client choice both for the benefit of clients themselves and for the health of the market more generally. As the Justice Secretary told the Justice Select Committee last week, we have listened and will put forward revised proposals in the autumn. We have also listened on the proposed residence test and will consider the issues raised as well as the comments made across the proposals from nearly16,000 responses.

This House has much collective wisdom and experience about the issues that we have been discussing today. I want to make it clear that this is a real consultation and we are listening. The decision that Ministers have to take will be in the context of the economic realities from which the legal aid fund cannot escape. There will be cuts that will mean some tough choices. However, when the cuts have been made we will still be left with one of the most generous legal aid schemes in the world. I would make the point that although I have never compared it with continental legal aid schemes, I have compared it with common law legal aid schemes in Australia, Canada, New Zealand and elsewhere—and noble Lords will find that it is one of the most generous in the world. I am proud of that fact. I want us to have a generous legal aid scheme. Access to justice is important. I want us to work on ways and ideas, some of which have been thrown up by the consultation, which will give long-term sustainability to legal aid.

However, long-term sustainability means the legal professions facing up to some hard facts. There continues to be oversupply in both parts of the profession, with too many lawyers chasing a limited amount of publicly funded work. Lawyers themselves have to address the further issues of quality and consolidation which will remain long after this present argument has been settled. Alternative business structures, the Jackson reforms, no-win no-fee, damage-based agreements and conditional fee agreements, will all impact on the organisation and structure of the profession. There are wider issues, such as a lack of social mobility and diversity which cannot be solved simply by tweaking the legal aid scheme.

In some ways, I have been disappointed at the way in which those who have responsibilities in these areas have refused to engage with these fundamental issues. I agree with my noble friend Lord Marks that we have to seek a new settlement in this matter. There is still time to do so. Our legal system, our respect for the rule of law and the eminence and integrity of our judiciary are precious gifts passed down from one generation to another. We all have a duty to protect what is best while managing the change that is inevitable. That is the task before us now, and I again call on all those who care about the system of justice to join us in that task.

Coroners and Justice Act 2009 (Consequential Provisions) Order 2013

Lord McNally Excerpts

Wednesday 10th July 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Coroners and Justice Act 2009 (Consequential Provisions) Order 2013.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

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

My Lords, the order amends two key provisions in the Coroners Act 1988. The first is Section 4A(8), which governs the jurisdiction of coroners in Wales. The second is Section 13, which allows applications to be made to the High Court by, or under the authority of, the Attorney-General, for an inquest, or fresh inquest, to be ordered. These provisions of the Coroners Act 1988 will not be repealed when the bulk of Part 1 of the Coroners and Justice Act 2009 is implemented later this month. The purpose of the draft order is simply to amend the terminology of these provisions to make them consistent with the Coroners and Justice Act 2009.

Part 1 of the 2009 Act contains a number of important reforms to the coroner system. It creates the new post of chief coroner, the new judicial head of the system, and makes a number of changes that will help to speed up the inquest process, improve consistency between coroner areas and drive up standards.

Part 1 of the 2009 Act also introduces new terminology, including new titles for coroners and the areas they are appointed to. It also introduces the new concept of an “investigation” into a death, of which the inquest will form part. Under the 2009 Act, the coroner or jury will make “determinations and findings” at the end of an inquest rather than reaching a “verdict” and making an “inquisition”.

Following a consultation exercise earlier this year, we intend to commence the majority of the 2009 Act provisions, and new coroners’ rules and regulations, on 25 July. When we implement the 2009 Act, we will repeal the 1988 Act but with two important exceptions. The first exception relates to the deployment of coroners in Wales. Section 4A(8) of the Coroners Act 1988 provides that a coroner appointed to a district in Wales is to be considered a coroner for the whole of Wales. This gives additional flexibility in the deployment of resources in Wales. It means that a coroner with specialist skills can temporarily act outside his or her own district without having to be appointed as a coroner in the other district. This is particularly useful for urgent matters which may arise, such as the need to request a post-mortem examination or to facilitate organ donation. The draft order, therefore, updates the language of Section 4A(8) to make it consistent with the 2009 Act. It does this by changing the word “coroner” to “senior coroner” and “coroner’s district” to “coroner area”. We will repeal the rest of Section 4A.

--- Later in debate ---

[Lord Beecham]

My Lords, I have some second-hand acquaintance with the coroner system because I was articled to a coroner and subsequently became his partner. He was a part-time coroner in the north-east of England. I cannot resist the temptation—I rarely do—to recount a couple of incidents from that time. The first was the remarkable theory constructed by the coroner’s officer, who is a police officer attached to the coroner’s office, about a chap who was found drowned in the bath. The officer came up with the wonderful theory that this man had committed suicide by deliberately banging himself on the back of the head so that he would become unconscious and drown in the bath. My principal was not entirely convinced by this theory, and accidental death was recorded instead. On another occasion he had to show a bereaved widow the body of her husband for identification purposes. The body was produced from the cabinet and uncovered, and she acknowledged that this was indeed her husband. She turned to go away and my partner, as he then was, began to put the drawer back into the cupboard, but then she said, “Do you mind, Mr Henderson, if I have another look?”. “Oh yes, my dear”, he said, and pulled the thing out again and uncovered it. She looked down at her husband and said, “Well, there you are”—I will not repeat the expletives—“may you rot in hell”. So a coroner’s life can be quite an interesting one.

With regard to the order, my honourable friend Robert Flello raised a couple of points in the other place. The first was to regret the fact that it did indeed take something of a struggle to persuade the Government to retain the office of chief coroner. However, they did that, and I join the noble Baroness in commending that and, up to a point, the changes before us today. She and the Minister are right to refer to the continued availability of Section 13 of the 1988 Act and the possible process of obtaining an order from the Attorney-General. However, that is by no means a simple procedure; rather, it is convoluted and, given that the noble Baroness has reminded us of the state of mind of bereaved families, it is one that is difficult to pursue.

The point is that in the 2009 Act there was provision for an appeals procedure. My honourable friend asserted, and I agree with him, that it would have been better to have retained or implemented that provision, particularly as the alternative to the Attorney-General procedure, cumbersome and protracted as it is, will now be only to rely upon judicial review. Judicial review, of course, poses a question of cost and of course will largely be out of scope of legal aid. It will be yet another difficult process for someone, particularly in the circumstances of bereavement, to negotiate, both practically and emotionally. It is unsatisfactory that the Government have not retained—or, rather, implemented—that provision for an appeals process, and are leaving the potential applicant with an unsatisfactory choice between the Attorney-General process and JR, the access to which is highly questionable .

In replying to my noble friend, the Minister, Mrs Grant, said simply:

“The right answer is to raise standards”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 26/6/13; col. 7.]

As my noble friend pointed out, the two things are not incompatible. Of course it may well be, as both the Minister and the noble Baroness have said, that standards should indeed be raised, but that does not necessarily mean that there will not on occasion be the perceived necessity on the part of bereaved members of the family or others to challenge a decision. There ought to be a proper scope to facilitate that, and the concern is that that is not easily available under the order as it will stand.

The other aspect that the Minister might perhaps touch on is what is left to be done. Just last week we had a response to the consultation on other aspects of implementing the reform, and I assume that there will be further orders to come. I do not know if he is in a position to indicate when that might happen—I hope it will not be for a while so that some of us, the Minister included, can take a breath in the mean time from the tide of regulations and orders that we will be discussing over the next couple of weeks. One might have thought that it made sense for the whole thing to be brought together, but we have to deal with the order today. In the circumstances, we cannot object to it but we have regrets about the limited way in which the 2009 Act is being implemented. We look forward to seeing how the other aspects of it that remain to be dealt with emerge in due course.

[Lord McNally]

My Lords, I am grateful to both the noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, for their contributions. I pay tribute to the noble Baroness. Whenever a Government listen to wise advice and make an adjustment of policy, the Opposition immediately and churlishly brand that a U-turn rather than what good government should be, which is to listen to wise advice. I think that everyone now believes in the campaign that the noble Baroness very successfully worked on to restore the office of chief coroner; I do not think that anyone would now go back on that decision. Indeed, one of the more welcome things about what has happened is that His Honour Judge Peter Thornton has hit the ground running in his job. He has been visiting coroners across England and Wales, meeting stakeholders, issuing guidance to coroners on issues such as the location of inquest hearings and less invasive post mortem examinations, and drawing up proposals for specialist cadres of coroners to conduct certain types of investigation. He has been working very closely with my own office, the MoJ, on the rules and regulations under the Act, and has set up a new coroners’ training group and is working with the Judicial College to deliver training for coroners. Therefore, the hopes and expectations that the noble Baroness, Lady Finlay, has for the office are justified by the new chief coroner’s “hit the ground running” attitude to his appointment, as I described it. He certainly has my support in that.

--- Later in debate ---

[Lord Beecham]

I am very grateful to the Minister for raising this matter, which I confess I have also been approached about and had intended to raise, but immersed as I have been in several regulations and debates and preparation for them, I am afraid I had overlooked that. I am particularly grateful to the Minister for making that clear. I suppose that I ought also to declare an interest as a member of the Jewish community in that regard.

[Lord McNally]

I sincerely hope it is a facility that the noble Lord does not need to use personally for a very long time. As he says, both the Muslim and Jewish communities have raised this issue, which again proves the value of having a chief coroner. It means that when communities raise an issue it can go to the chief coroner, who will now take responsibility for issuing guidance and getting the right responses. I thank the contributors and again hope that this SI will be accepted by the Committee.

Motion agreed.

EU: Police and Criminal Justice Measures

Lord McNally Excerpts

Tuesday 9th July 2013 Lords Chamber

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

My Lords, the following Statement was made by my right honourable friend the Home Secretary in the other place earlier today.

“With permission, Mr Speaker, I would like to make a Statement on the decision on whether the UK should opt out of those EU police and criminal justice measures adopted before the Lisbon treaty came into force.

As honourable Members will be aware, this is a stand-alone decision which the Government are required to make under the terms of the Lisbon treaty by 31 May 2014, with that decision taking effect on 1 December of that year. It covers around 130 measures, some of which it is clearly in our national interest to remain part of. But if we wish to remain bound by only some of the measures, we must exercise our opt-out from them all, en masse, and seek to rejoin those that we judge to be in our national interest.

The Government have committed to a vote in this House and the other place before formally deciding on this matter. We shall honour that commitment in full. Next week, honourable Members will have the opportunity to debate and vote on this approach. Following our discussions in Europe, another vote will be held on the final list of measures that the UK will formally apply to rejoin.

Let me briefly set out the rationale by which the Government have approached this decision. We believe that the UK should opt out of the measures in question for reasons of principle, policy and pragmatism and that we should seek to rejoin only those measures that help us to co-operate with our European neighbours to combat cross-border crime and keep our country safe.

On principle, I am firmly of the belief that the UK’s international relations in policing and criminal justice are first and foremost a matter for Her Majesty’s Government. In policy terms, the UK has—and will continue to have—the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore right that we take the opportunity to consider whether we wish to retain measures that were joined by the previous Government and to decide on a case-by-case basis whether we are willing to allow the European Court of Justice to exercise jurisdiction over them in the future. Finally, the Government are being pragmatic. I have said before that we will not leave the UK open to the threat of infraction, and fines which run into many millions of pounds, by remaining bound by measures we simply cannot implement in time. That would be senseless.

In a number of areas, the measures relate to minimum standards in substantive criminal law. Even before their adoption, the UK already met or exceeded the vast majority of these standards and will continue to do so, whether or not we are bound by them. As people have become more mobile in recent years, so too has crime. The Government have sought and listened carefully to the views of our law enforcement agencies that combat it. We understand that some of the measures covered by this decision are important tools which they need to protect the British public. The Government have identified 35 measures which we will be seeking to rejoin in the national interest.

That set of measures, on which we propose to begin our discussions with the European Commission and other member states, is laid out in Command Paper 8671, which is published today. I want to be clear: what must happen next is a process of negotiation with the European Commission and other member states. These negotiations will determine the final list of measures we formally apply to rejoin, but we promised that we would set out these measures clearly and give honourable members time to consider them before asking them to vote, and this is what we have done.

One of the measures that we will seek to rejoin, and on which I know many honourable Members have strong views, is the European arrest warrant. I agree with our law enforcement agencies that the arrest warrant is a valuable tool in returning offenders to the UK. Its predecessor, the 1957 European Convention on Extradition, had serious drawbacks. The arrest warrant has helped us to secure and accelerate successful extradition procedures—as shown by the case of Osman Hussain, one of the failed London bombers of July 2005, who was extradited back to the UK from Italy in less than eight weeks. More recently Jeremy Forrest, the teacher who was sentenced last month for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest. Since 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 suspects for rape and 105 for murder. In the same period 63 suspects for child sex offences, 27 suspects for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant. We owe it to their victims, and their loved ones, to bring these people to justice.

However, the European arrest warrant has its problems too, as honourable Members have eloquently explained in this House. The previous Government had eight years to address these concerns and did nothing. This Government have taken action and today I am proposing additional safeguards to rectify these problems and increase the protection offered to those wanted for extradition, particularly British citizens. A number of honourable Members have explained how European arrest warrants have been issued disproportionately for very minor offences. I will address this by amending the Anti-social Behaviour, Crime and Policing Bill, which is currently in Committee, to ensure that an arrest warrant can be refused for minor crimes. This should stop cases like that of Patrick Connor, who was extradited because he and two friends were found in possession of four counterfeit banknotes.

We will also work with other states to enforce their fines and ensure that in future, where possible, a European investigation order is used instead of a European arrest warrant. This would mean police forces and prosecutors sharing evidence and information without requiring the extradition of a suspect at the investigative stage.

Other honourable Members have expressed concern about lengthy and avoidable pre-trial detention. I will amend our own Extradition Act to ensure that people in the UK can be extradited under the European arrest warrant only when the requesting state has already made a decision to charge and a decision to try, unless that person’s presence is required in that jurisdiction for those decisions to be made.

Many Members, in particular my honourable friend the Member for Enfield North, will recall the case of Andrew Symeou, who spent 10 months in pre-trial detention and a further nine months on bail in Greece, only to be acquitted. The change that I am introducing would have allowed Andrew Symeou to raise, in his extradition hearing, the issue of whether a decision to charge him and a decision to try him had been taken. It would likely have prevented his extradition at the stage he was surrendered and, quite possibly, altogether. We will also implement the European supervision order to make it easier for people like Mr Symeou to be bailed back to the UK.

Other honourable Members are concerned about people being extradited for conduct which is not criminal in British law. I will amend our law to make it clear that in cases where part of the conduct took place in the UK, and is not criminal here, the judge must refuse extradition for that conduct.

I also intend to make better use of existing safeguards to provide further protections, so I will ensure that people who consent to extradition do not lose their right not to be prosecuted for other offences, reducing costs and delays. We propose that the prisoner transfer framework decision should be used to its fullest extent so that UK citizens extradited and convicted can be returned to serve their sentence here. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask, with their permission, for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. This change could have prevented the extraditions of Michael Binnington and Luke Atkinson—sent to Cyprus, only to be returned to the UK six months later.

To prevent other extraditions from occurring at all, I intend either to allow the temporary transfer of a consenting person so that they can be interviewed by the issuing state’s authorities or to allow them to do this through means such as video-conferencing while in the UK. Where people are innocent, this should lead to the extradition request being withdrawn.

These are all changes which can be made in UK law—and which could have been made by the party opposite during their time in government. Co-operation on cross-border crime is vital, but we must also safeguard the rights of British citizens. The changes that we propose will do that.

Before I conclude, I am conscious that honourable Members want to know our approach to the new Europol regulation. Let me say that I fully recognise the excellent work of Europol and its British director, Rob Wainwright. Honourable Members will recall Operation Golf, a joint operation led by Europol and the Metropolitan Police, which cracked down on a human-trafficking gang operating in Ilford and led to the release of 28 trafficked children and the arrest of 126 suspects. It is for reasons such as this that we are proposing to rejoin the existing Europol measure.

On the new proposal, the Government have today tabled a Motion as the basis for a ‘Lidington-style’ debate on the floor of the House next week, following the debate and vote on the plan that I have outlined today. That Motion states that we should opt in post-adoption, provided that Europol is not given the power to direct national law enforcement agencies to initiate investigations or share data that conflict with our national security.

For reasons of policy, principle and pragmatism, I believe that it is in the national interest to exercise the United Kingdom’s opt-out and rejoin a much smaller set of measures that help us to co-operate with our European neighbours in the fight against serious and organised crime. I also believe that Her Majesty’s Government must strike the right balance between supporting law enforcement and protecting our traditional liberties. What I have outlined today will achieve both those goals. I commend this Statement to the House”.

--- Later in debate ---

[Lord McNally]

I am grateful for the noble Baroness’s response to the Statement. I noted that she thought that it had common sense and moderation. Indeed, there were times during her response to the Statement where there was a suggestion that we had shot her fox, in that all the disasters to which she was hoping to point—about not taking note of national security and effective policing—are not there. The Statement of my right honourable friend the Home Secretary puts those matters right to the fore, as is demonstrated in the list that we have put before the House today.

There was hardly a hint that this little problem was left by the Labour Party’s negotiators for the Lisbon treaty. As the Home Secretary mentioned in her own remarks, the then Government did precious little to address these issues while in office. We therefore make no apologies for having used our time in office to look at these matters in detail. My point when we were discussing this at Questions the other day was that they are serious issues that deserve proper and serious consideration. The document published today, Command Paper 8671, is a sign of the candour and transparency with which the Government intend to approach this matter. The document contains not only the full list of the measures with an explanation of the protocol under which they have been produced, but also six Explanatory Memoranda from various concerned departments, which we hope will be of help to both Houses in the debates to come.

I make no apologies for our now embarking on some interesting negotiations. We have taken the matter seriously and have produced a list which anybody objectively looking at the exercise will see goes to the core of the issues left by Protocol 36.

I have just been told that we published five Explanatory Memoranda, not six—stop press.

[Baroness Smith of Basildon]

I hoped that the noble Lord had been passed answers to the questions I had asked him.

[Lord McNally]

I am answering the questions. For example, the noble Baroness asked whether foreign citizens charged in the UK would be safeguarded. Yes, the safeguards will apply to all those subject to the European arrest warrant. The noble Baroness asked on what basis the decisions would be taken. The Government believe that we should exercise the opt-out and then seek to rejoin the measure where it is in the national interest to do so. The Government have considered the impact of each measure on public safety and security, whether practical co-operation is underpinned by the measure and whether there would be a detrimental impact on co-operation if we pursued it by other mechanisms. The impact of the measures on civil rights and liberties has also been considered.

The noble Baroness asked me if I had done a word count on the various issues. We have said that we intend to opt in to 35. As she says, a number—we think abut 14—of the original list have been repealed and replaced. There are about another 20 measures that retain the minimum European standards. However, the noble Baroness’s kind of quizzing approach really misses the point of what this exercise is about. Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36—which would have been faced by any British Government and which the previous Government showed little enthusiasm for addressing—in a very practical way that will give both Houses of Parliament the time and the opportunity for input into negotiations which the Government will pursue with due seriousness and the intent of success.

[Lord Taverne]

My Lords, I am glad that the negotiations between the Conservatives and the Liberals inside the coalition have come to a sensible conclusion. In passing, one wonders what has been achieved in exercising the block opt-out; what we are left with having opted out of is not of any great significance.

The Conservatives have sensibly given way, contrary to their original stance, on the major measures for police and crime co-operation in the European Union. There is nothing more difficult in politics than changing your mind in the light of the evidence. It appears as if that is what the Conservatives in the Government have done, and I applaud them for that.

It is also fair to say that this has been a major victory for the Liberal Democrats in the coalition, and for this House, particularly the important work and results communicated in the Bowness and Hannay committees. It is also of very great importance that it has been a signal defeat for the UKIP-and-Tea-Party tendency inside the Conservative Party.

I ask two questions of the Minister. Is there any indication of the present attitude of the Commission to the opt-out proposals and what sort of timetable is envisaged? Secondly, will the Conservative leadership in the Government, including the Lord Chancellor and the Home Secretary, now join with Labour and the Liberal Democrats in exposing UKIP as the party which is soft on crime?

I am sure the Minister will agree that since UKIP rejects any legislation for co-operating on crime in the European Union, its policies can only benefit people-traffickers, porn-merchants, paedophile rings, money-launderers and other criminals who operate across borders, as they increasingly do.

[Lord McNally]

My Lords, on these specific questions, I have seen only the initial response from the Commission that was carried on the news-tapes; as far as I could see, that response was constructive in terms of welcoming this approach from the British Government. Of course we have had to get to this point before going into more formal discussions, but officials have had technical discussions with the Commission and the Council, focusing on the legal framework under which the decision will be made, to ensure a shared understanding of the legal processes around the 2014 decision. I know that my right honourable friends the Justice Secretary and the Home Secretary spoke today to Commissioner Reding and Commissioner Malmström respectively. There is no doubt that the Commission has responded in a way that we find constructive. I will cover another point made by the noble Baroness, about whether there would be gaps and lacunas in this. That would not be in the interests of any of us; we will negotiate with both sides to make sure that the move from one jurisdiction to another is a smooth one.

On the question of UKIP and how our respective parties respond to it, that is a matter for the political campaigners. However, in this Statement my right honourable friend the Home Secretary has demonstrated what we would expect of her, given her high office. She has taken account of the national security and policing needs in coming to these decisions, and she should be congratulated on that.

[Lord Davies of Stamford]

My Lords—

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I apologise for remaining on my feet, but as the noble Lord, Lord Richard, said, I chaired the committee that wrote the report to which the Government have not found it in their wisdom to refer in this Statement.

One consequence of the Statement, which I thank the Minister for repeating, is that the committees which have worked together on this issue will now reopen the inquiry and provide the House with a second report before any final vote is taken. Does the Minister agree that this Statement makes, frankly, a pretty good mockery of the Government’s undertaking to engage with Parliament on this issue? The original decision was announced in Rio de Janeiro, rather further away than the studios of the “Today” programme, which is the normal distance from Westminster at which such things are said. That was followed up by a Statement in the House which preceded any consultation with this House, with the other place, with the devolved parliaments and with the professions.

Now we have a Statement that simply ignores the views of your Lordships’ EU Select Committee, which was supported by members of all three parties and of none and which came to the conclusion that the Government had not at all made a convincing case for triggering the block opt-out. That they do not even find room in the Statement to refer to that report is perhaps to be explained by the fact that the Government’s response to it is now two weeks overdue, and we have not yet seen it.

Can the Minister confirm that a second vote will be taken in this House, as in the other place, before any final decisions are reached, and that that debate and the vote will be taken in the light of the Government’s success in negotiating with the Commission and the Council on the measures that they wish to rejoin? Will the Government provide both Houses with a report on those negotiations well in advance of the second vote? Frankly, it is pretty odd to ask both Houses to vote on a 159-page White Paper within about a week.

[Lord McNally]

My Lords, on the point about the committee’s report, we will respond to that in due course. I hope that as we move forward we do not get bogged down in the niceties of protocol. The report from the noble Lord’s committee was influential in the discussions that have taken place. This is a little bit like a game of three-dimensional chess. In reaching decisions, the Government are trying to keep both Houses informed and to keep relations and channels open to the Commission and to member states. I hope Members of the House will understand that the issues covered by the 2014 decision are numerous and complex. We have been conscious of the need to ensure that any information we provide is as accurate and as informative as it can be.

Members of the House will be aware that the document today with its five explanatory memorandums is a measure of that commitment to put the information before the House as quickly and as fully as possible. Of course, I think it is implicit in everything that has been said that a second vote will be taken when the outcome of these negotiations are known. Common sense dictates that this will not be finessed through or carried through with smoke and mirrors. Both Houses, with all their experience and expertise, will demand the full facts on which they will base that second decision.

[Lord Davies of Stamford]

My Lords, is there not something very odd and illogical—weird, bizarre, even—about this Statement? It goes at some length into the merits of the proposals, or measures, that the Government intend to opt back into, so why opt out of them in the first place? It does not say anything at all about the de-merits of the measures that the Government want to abandon definitively. It is not surprising that the House seems to have come to a consensus this evening that what the Government have been conducting is essentially a charade. Will the noble Lord accept that this is a charade not entirely without cost? There will be the cost of an unnecessary negotiation. There will be the exasperation caused to our partners by the fact that we treat them in this particular way. There is, of course, the risk that we will not be able to renegotiate in exactly the fashion we want our resumption of the measures to which we wish to adhere in future—unless of course the Government have already received assurances in advance about that, in which case I hope the noble Lord will be frank and tell the House. Is it not also true that the Government embarked on this quite unnecessary, gratuitous and risky course simply for reasons of the most squalid party-political nature—designed simply to buy off their own Eurosceptics and to keep UKIP from making inroads into the Tory Party vote?

[Lord McNally]

That intervention would have a scintilla of credibility if it did not come from the Benches that negotiated the specific option with which we are now dealing. The noble Lord cannot get away from that fact. For heaven’s sake, why was Protocol 36 negotiated in the first place if it was not for the opportunity that the House is now taking? The noble Lord can score all the party-political points that he wants, but this was the legacy of the Benches opposite; the Government are dealing with it—like many other things. We are dealing with this, as my right honourable friend has emphasised, with a clear focus on the best assistance we can give to our policing and the best protection we can give to our national security. I am very happy that the Government are able to bring forward such a coherent programme, which is now open to both Houses to study and for a negotiation to progress.

[Lord Lloyd of Berwick]

My Lords, I will be very brief. I rejoice that the Government have decided that, after all, we need the European arrest warrant, together with Eurojust and Europol and the cross-border police co-operation. These are on any view the most important of the 35 measures which are due for retention—if, of course, we are able to opt back in.

Given the uncertainty surrounding the opt-in process, and given the fact that we are already subject to the jurisdiction of the Court of Justice of the European Union in respect of all the many police and justice measures that we have opted into since 2009, are we not taking an unjustifiable risk in opting out of what is good, including the 35 measures which are agreed to be in the national interest, in order to get rid of the other 95 pre-Lisbon measures, which are of no real importance to us, nor even of great relevance to us, one way or the other? It seems to be an unjustifiable risk we are taking for no apparent reason.

[Lord McNally]

I concede a lot of logic in what the noble and learned Lord has said. The fact is, however, that we had the Protocol 36 exercise to carry through; we have discussed it inside Government and with Parliament on a regular basis; and we have listened to the views of the committee of the noble Lord, Lord Hannay, and others. We have suggested a way forward. Is it a way forward with risk? Yes it is. All such enterprises have an element of risk. However, we can move forward with a degree of confidence once we get past some of the nitpicking about who did what, where and when, and get down to the central issue of whether we can successfully negotiate with our European colleagues on matters of our national interest and, I respectfully suggest, of Europe’s interest. What has encouraged us is that the soft soundings that we have taken have led us to believe that we can carry out meaningful, fruitful discussions and negotiations that recognise the risks that the noble and learned Lord mentioned, but, because we will do this with good will and an intention to succeed, and with colleagues who have similar good will and want us to succeed, will minimise those risks.

[Lord Bowness]

My Lords, I thank my noble friend for repeating the Statement. He will not be surprised to know that, as the former chairman of one of the sub-committees that prepared the report, I associate myself with the regret expressed by the noble Lord, Lord Hannay, that we have not had a response within the normal and required time, although there appears to have been time to produce the 159 pages of White Paper.

The noble and learned Lord who spoke just now referred to risk. At the seminar on this issue held by the European Union Select Committee, a distinguished participant said, vis-à-vis risk and the difficulties of renegotiating re-entry, that the game was not worth the candle. I endorse that 100%.

I turn to specifics. The Statement says that the Government wish to rejoin the existing Europol measure. It also says that they do not intend at this stage to opt into the new measure. I regret that because it means that we will not have a vote in the negotiations, and a future opt-in to the new Europol provision will depend on certain matters being dropped from the current draft.

In preparing a list of the 35 measures, did the Government take account of the report to your Lordships’ House on the UK opt-in to the new Europol regulation that I believe was debated last week, which makes it absolutely clear that there are four other Council decisions that may not be repealed and replaced by the current Europol proposal, and which Europol advised were directly connected—that is, the existing Europol and a possible new Europol? It follows that whatever happens with the new Europol, if we wish to stay in the old Europol and are successful in renegotiating that, we will need the four separate Council decisions that are listed in footnote 39 on page 10 of the report. As far as I can see, none of them is included in the 35 circulated today. Am I correct? Is it an omission? If it is an omission, will it be put right? If it is an intentional omission, what is the thinking behind it?

Perhaps I may ask my noble friend, in all sincerity, whether we may have a very close examination of all the other measures before we go to Brussels to renegotiate, in order to make sure that there are no others that we should have opted into.

[Lord McNally]

I regret that we have reached 20 minutes. I say to unlucky Members who did not get in—I made a mess of this last time—that this is just the beginning. We have a long way to go and there will be lots of opportunities to examine both Europol and other matters.

I make it clear that we support Europol as it currently exists. This is why we wish to rejoin the existing Council decision on Europol. The new regulation proposes additional obligations that could put at risk the independence of our law-enforcement agencies. We do not support it and have indicated that we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflict with national security.

There is no contradiction here. Our recommendation on the Europol regulation is about participation in a future measure governing Europol. It has no impact on our current participation in Europol. The Government continue to value Europol, but we feel that the Commission’s proposals go too far in an area that we consider poses a risk to the independence of our law-enforcement authorities. Our message is clear. We should get the required changes and we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflicts with national security.

I shall read Hansard carefully and if I have not covered the points made by the noble Lord I shall do so in a letter. However, I am already overrunning my time and we shall return to this matter.

Offender Rehabilitation Bill [HL]

Lord McNally Excerpts

Tuesday 9th July 2013 Lords Chamber

Moved by

[Lord McNally]

1: After Clause 10, insert the following new Clause—
“Arrangements for supervision and rehabilitation: female offenders
In section 3 of the Offender Management Act 2007 (power to make arrangements for the provision of probation services), after subsection (6) insert—“(6A) The Secretary of State must ensure that arrangements under subsection (2) or (5) for the supervision or rehabilitation of persons convicted of offences—
(a) state that the Secretary of State has, in making the arrangements, complied with the duty under section 149 of the Equality Act 2010 (public sector equality duty) as it relates to female offenders, and(b) identify anything in the arrangements that is intended to meet the particular needs of female offenders.””

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

My Lords, I am pleased to move Amendment 1 which seeks to recognise the needs of female offenders and put them firmly in the Bill. It requires the Secretary of State to ensure that arrangements for the supervision and rehabilitation of offenders state that, in making those arrangements, he has complied with the public sector duty under Section 149 of the Equality Act 2010 as it relates to female offenders. The arrangements must also identify any provision that is intended to meet the particular needs of female offenders. It applies both to the contract with private providers and services provided by the public sector probation service.

I pay tribute to those noble Lords who have argued for such statutory safeguards for female offenders. I am particularly grateful to the noble and learned Lord, Lord Woolf, for his earlier amendments and for his constructive discussions with me about this amendment. I am delighted that he has agreed to put his name to the amendment today. I likewise thank my noble friend Lord Marks and the noble Lord, Lord Beecham, for adding their names.

The amendment inserts a new subsection in Section 3 of the Offender Management Act 2007, which relates to making arrangements for the provision of probation services. Under the first part of the amendment, arrangements for the provision of supervision or rehabilitation services must state that the Secretary of State has complied with the public sector equality duty at Section 149 of the Equality Act 2010. This means that the Secretary of State must consider evidence on the particular needs of female offenders where they differ from those of men, and consider whether any adjustments or special provision for female offenders is necessary to address these needs. Where a particular need is identified, this will be reflected in the contractual or other arrangements, which will include outputs specific to female offenders.

In order to win contracts, service providers will be required to demonstrate that they understand and will respond to the particular needs of female offenders where these differ from those of men. This will include, for example, taking account of women’s family and caring responsibilities. We will be looking for providers to come up with innovative ways to deliver gender-specific services that are responsive to local needs, and we will expect them to make links with partner agencies to provide a holistic service at a local level.

As I have mentioned to the House on previous occasions, service providers will be supported by guidance on working with female offenders and the sorts of provision that are known to be effective, which is being prepared in collaboration with members of the new advisory board on female offenders. Once bids have been through a robust evaluation process to ensure that potential providers are offering innovative and effective services to female offenders, the second part of the amendment requires contracts and other arrangements to identify anything in the arrangement that is intended to meet the particular needs of female offenders. Noble Lords will also be pleased to hear that, in the spirit of transparency, details of contracts and service level agreements will be published. This will mean that people can see what provision is being made to meet the needs of female offenders and hold us to account. Contract managers within the Ministry of Justice will also monitor service delivery to ensure that key outputs for female offenders are being delivered.

I hope that noble Lords will welcome and support Amendment 1, which I firmly believe will provide the recognition and safeguards for female offenders that the House has been seeking. I beg to move.

[Lord Woolf]

My Lords, I should remind the House, particularly in view of the generous way in which the Minister introduced the amendment, and his references to myself, that I am the chairman of the Prison Reform Trust, and received considerable help in putting forward the matter from that trust in that capacity.

This is a considerable step forward in the way in which we treat criminal offenders who are female. It has been well recognised that their needs are different, and it is certainly time that those who are responsible for meeting those needs should have responsibility clearly set out in statute. I am particularly grateful that the Minister and his advisers found ways in which that could be done in the shape of this Bill. The amendment is not as clear as I would have liked but it has to be recognised that what we are achieving is being done by using three pieces of legislation, which is not the ideal way to legislate, but it achieves a purpose. I am very conscious that we are told that we must not look a gift horse in the mouth when it is offered, but I have to confess that this gift horse, if that is an appropriate description, was examined most carefully.

I am particularly grateful for the way in which the Minister introduced this amendment. He stressed the importance of clarity and transparency with regard to various connected matters, so that it achieves the purpose he identified. During debates at the earlier stages of the Bill, the Minister indicated that there would be an annual statement of progress so we can all see that it is moving forward as we would hope. Does he not agree that this is one matter that can be dealt with that way?

It is possible that, when three pieces of legislation are involved—as in this case—the time will come when they are initially disconnected. If this does occur, I believe—and I am sure the Minister will confirm this—that the department will ensure that no prejudice is caused to female offenders as a result of any gap in time. I repeat my gratitude for this amendment and would strongly recommend it to the House.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I support the amendment and I am extremely glad to see that it has been introduced by the Government. For many years people have been hoping that there would be an improvement, and therefore it is to be warmly welcomed. The amendment refers to arrangements for supervision. I would like to raise one point in connection with that because the supervision, of course, involves the probation service.

As noble Lords will know, each of the 35 trusts has a volunteer probation board which is the employer of all the probation staff working in a trust. Apparently, there is an expectation that board members do not criticise the wishes of the Government because although they are volunteers, they are not civil servants. They have been reminded by the head of Transforming Rehabilitation that they should have regard to the constraints imposed on civil servants. I have had representations from board members about the vote which was passed in this House on Report about the requirement for the Secretary of State to allow us to discuss changes to be made to the probation service. Apparently, the board says that planning is going ahead on the timetable which I outlined on Report regardless of the vote in this House. Probation staff around the country are, as he described it, lost for words because it was expected that at the very least the Government would respect the vote of this House and reconsider their proposals, or at least appear to do so. As it seems that that is not happening, and this amendment is all about the supervision of women offenders, I should be grateful if the Minister could tell the House exactly what is happening following the vote on Report.

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

My Lords, perhaps I may deal with that matter first. The Bill is now in this House. It will then go to the other place, which will also have views about an amendment which the noble Lord was told at the time was defective and which remains defective. I do not think I can go any further than that. We will see what the other House thinks about the amendment and in due course it will come back to this House to be dealt with.

I thank the noble Lord, Lord Beecham, for his kind remarks. He will find that that gives him a warm glow and so I recommend that he continues to make a habit of it. As my noble friend Lord Marks has said, the noble and learned Lord, Lord Woolf, has a good strike record on these Bills and I very much enjoy working with him and benefiting from his wisdom. On the question of the report on progress in dealing with women in the criminal justice system, we will be reporting to Parliament and we will be able to see the progress not only of these measures, but of others that we are taking.

With regard to the prison estate, the noble Lord, Lord Beecham, has drawn attention to an issue that we are currently looking at. We have a number of thoughts on this matter and a study is being undertaken of the prison estate. We will come forward with specific ideas about how released prisoners and the specific issue of women offenders will be dealt with.

On contracts, the contract specifications will set out the services that contracts are obliged to provide. The contract will contain specific outputs designed to meet the needs of female offenders. In order to comply with this new duty, the contract will state that the Secretary of State has,

“complied with the duty under section 149 of the Equality Act”,

and will also draw attention to the specific outputs. As my noble friend Lord Marks pointed out, we will publish these contracts and they will be brought forward with all possible transparency. I hope that this will give confidence and that the House will adopt the amendment.

Amendment 1 agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1

Lord McNally Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government what assessment they have made of the impact on the not-for-profit sector of the first three months of implementation of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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

My Lords, post-legislative scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take place, as is normal, three to five years after Royal Assent. However, the Ministry of Justice will carry out a variety of exercises to monitor the impact of the Act from now on.

[Lord Bach]

My Lords, I am grateful to the Minister. However, does the evidence available not point clearly to a world where not-for-profit organisations will be decimated, and their clients—often the poor, disadvantaged and sometimes disabled—will no longer have access to legal advice? Just look at what is happening already. Birmingham Law Centre is closing, the well renowned Mary Ward Centre in London, which had 800 welfare benefit cases last year, has precisely nought at the moment, and Coventry Law Centre—I declare my interest as patron of that organisation, which has a superb reputation—has had to turn away from reception at least 350 people who had housing, immigration, debt, employment and family legal issues. I put it to the Minister that this is not good enough for a country that, until this legislation, could pride itself that its legal system tried to be fair to everyone. What are the Government going to do about it?

[Lord McNally]

My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.

[Lord Marks of Henley-on-Thames]

My Lords, can my noble friend say at this stage how far organisations such as Citizens Advice appear to be coping with the changes? In particular, what, if anything, are the Government doing to assist Citizens Advice and others in the sector to introduce new methods of working to help them provide their services where legal aid is not available?

[Lord McNally]

My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.

[Lord Goldsmith]

My Lords, is the Minister able to help us on this despite the fact that the post-legislative scrutiny has not taken place? In addition to the places that my noble friend Lord Bach referred to, the Fulham Legal Advice Centre closed last month, I understand as a result of losing the money which used to come from those areas of work that have been taken out of scope under LASPO. Half the caseworkers in the Surrey Law Centre, which I believe serves the Lord Chancellor’s own constituency, are being made redundant through lack of funds. I declare an interest as chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, both of which are involved in providing support to the not-for-profit sector in giving free legal advice. Can the Minister also confirm that these problems are happening against a background of increasing demand? There has been a 100% increase in inquiries to the LawWorks inquiry line and a 26.7% increase in inquiries to the Bar Pro Bono Unit. Will the Minister say what more the Government will do, rather than simply leaving it for three to five years to do a review?

[Lord McNally]

On the contrary, I thought that I had made it clear in my Answer that we are not leaving it for three to five years. The intention is to monitor and review the impact of LASPO on all the affected groups outlined in the equality impact assessment. The Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and providers will complement the use of administrative data with bespoke research exercises where appropriate. We have worked with the Legal Services Board and the Law Society to carry out a survey of providers of legal advice that will provide a baseline against which changes might be measured in the future. Ad hoc reviews are also conducted where a provider stops undertaking legal aid work.

I am not pretending that law centres have not been hit by this change. However, as I indicated in the previous answer, we have given a lot of money to the transition fund to help law centres and other not-for-profit sectors to reorganise so that they remain effective.

[Lord Naseby]

Is it not extraordinary that lawyers in the United Kingdom appear to think that around £220 million—the saving required—is a figure that should be brushed aside, and that after just three months there should be a review of the whole process? I urge the Minister to give a strong answer to the judiciary’s response to the consultation, particularly given that the response stated:

“Many young and talented lawyers are no longer choosing to practise in crime”,

which in the long term will affect the quality of the defence and prosecution barristers involved in criminal trials. Is it really the responsibility of the legal aid budget to fund that dimension of legal practice?

[Lord McNally]

Welcome though my noble friend’s intervention was, he is treading on areas that we will be debating on Thursday, when we have a very full and interesting debate on legal aid. I will say, however, that the noble Lord, Lord Bach, spent most of the last year predicting a perfect storm when LASPO came into effect. In fact, there has not been a perfect storm: the market is adjusting and advice is being given. However, the not-for-profit sector has had to make the adjustment that many others, including my own department, have had to make in the face of economic realities.

Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013

Lord McNally Excerpts

Monday 8th July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 24 April be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

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

I beg to move.

Amendment to the Motion

Tabled by

Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013

Lord McNally Excerpts

Monday 8th July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 24 April be approved.

Relevant document:1st Report from the Joint Committee on Statutory Instruments

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

My Lords, I shall also speak to the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The purpose of these orders is to make provision for fees to be paid by those who present claims or make appeals to employment tribunals and the Employment Appeal Tribunal. They also make provision for fees to be remitted or waived in full or in part if the person cannot afford to pay using the existing civil courts remission scheme.

Bringing a claim or an appeal to employment tribunals and the Employment Appeal Tribunal is currently free of charge. In 2012-13, the cost of running the employment tribunals system was £74.4 million. That cost was entirely met by the taxpayer. While the Government are committed to providing a fair system for those who need an independent tribunal to settle an employment dispute, we also believe that it is perfectly reasonable that those using the tribunals should contribute to their cost, where they can afford to do so. It is important that noble Lords understand that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims—vexatious or otherwise—and given the mitigations in place we do not believe the provisions of this order will do so.

Employment tribunals were originally intended as the option of last resort in disputes when all other resolution services had failed. Over time that status has eroded and claims are now often launched prematurely, without exploring alternative options for resolving disputes. The introduction of fees can support a necessary change in the mindset of users and help to reset the system by encouraging individuals to stop and think about whether a dispute can be settled without recourse to a tribunal, and whether it is really necessary to submit a claim. Complementing that aim, mandatory early conciliation will be introduced in 2014, meaning parties will not be able to bring a claim to the tribunal without first having sought a conciliated resolution via ACAS.

The Government are also implementing a brand new simplified set of rules and regulations governing procedure in employment tribunals. The simplified rules attempt to roll back and reset unnecessary complexity in tribunal rules, creating increased clarity and understanding for the lay person. This ought to reduce claimants’ reliance on legal representation and help return employment tribunals to the role envisaged when they were first set up.

Responsibility for the wider employment law, including the rules, lies with the Department for Business, Innovation and Skills. Should issues arise in this debate that are beyond my remit I will ask my colleague, my noble friend Lord Younger, to respond in writing should it be necessary. I am confident that noble Lords will see that these proposals are not an attack on employment rights or on people with low incomes. They simply reset the system that this Government inherited and reduce the taxpayer subsidy of employment tribunals by transferring some of the cost to those who use the service, while protecting access to justice for all. Assuming parliamentary approval, the instrument is due to come into force on the day after it is signed and made. We are confident that, subject to that approval, fees will come into effect on 29 July this year.

I turn now to the provisions of each order. Parliament has already made provision for fees to be charged in tribunals under Section 42 of the Tribunals, Courts and Enforcement Act 2007. The added tribunals order provides for employment tribunals and the Employment Appeal Tribunal to fall within the provisions of Section 42 as added tribunals allowing the Lord Chancellor to prescribe fees by order for anything dealt with by them.

The fee structure provided in the fees order reflects the decisions made and announced after the Government’s consultation paper, Charging Fees in Employment Tribunals and the Employment Appeal Tribunal. We considered the views expressed by those who responded to the consultation, and settled on a final structure taking proper and full account of those views.

Part 2 of the order provides for claimants to pay an “issue fee” covering a contribution to the pre-hearing costs, and then a “hearing fee”, payable 3 or 4 weeks before a hearing, should that stage in proceedings be reached. It also outlines a number of application fees, payable by the party making the application, and a fee for judicial mediation, payable by the respondent.

Sections 5 to 10 provide the fees payable. Two levels of the issue and hearing fees are proposed, and are defined in the order as type A and B claims. Claims are allocated to type A or B depending on the nature of the complaints described in the claim form. Type A claims are those which are simpler for the tribunal to deal with and so cost less for a claimant to bring—namely, £160 at issue and £230 before the hearing. Type B claims are more complicated, requiring more tribunal time and resources to determine. Therefore they attract higher fees of £250 at issue and £950 at hearing. Where there is a mixture of type A and B claims within the same claim form, the higher fee will be paid.

Sometimes in the employment tribunal two or more claimants present their claims on the same form. The order defines this as a fee group, and the number of people in the fee group also affects the fee due to be paid. There are three bands of fees, increasing on a sliding scale depending on the number of individuals named within a form. If claimants present their claims in this way, the fee payable per person will usually be much lower—and will never exceed—the amount that they would have paid if they had sent their claim separately.

In certain circumstances, Article 12 provides a safeguard ensuring that no one in a fee group will have their claim struck out because of the failure of others in their group to arrange a group payment if they themselves are willing to pay the single fee.

Part 3 of the order provides for fees in the Employment Appeal Tribunal. A flat fee regardless of claim or appeal type will be required on instituting an appeal. A further flat fee will be required ahead of the full hearing of the appeal. Part 4 of the fees order provides for transitional arrangements and remissions. Fees will be charged from the date of the order, so that those who have commenced their claims or lodged their appeals before this date will not pay any fees. Schedule 3 of the fees order makes provision for a range of remissions or fee waivers based on the existing HMCTS civil courts scheme. This scheme will ensure that access to justice is protected by reducing or remitting fees for individuals who provide evidence of being in receipt of particular qualifying benefits, or that their income is below certain thresholds.

The Government are fully committed to ensuring that tribunals remain accessible and continue to provide an effective service which is responsive to users. This measure provides for the users of the Employment Appeal Tribunal to make a contribution towards the provision of that service and to better balance the cost of providing access to justice between the user and the taxpayer without restricting that access.

I therefore commend the orders to the House and hope that noble Lords agree that the measures which I have proposed today should proceed.

--- Later in debate ---

[Lord Young of Norwood Green]

My Lords, my noble friends have made the key points, but I want to emphasise a couple of issues. The Government wanted to do something really positive and constructive, as my noble friend Lady Donaghy said, and they started to do it by enhancing the role of ACAS and encouraging mediation. We support that wholeheartedly. It is the right way forward. It is positive, it is constructive, it does not discriminate against people regardless of their income and it does not swing the pendulum towards employers, as I firmly believe the current proposals do.

As regards reducing the number of claims or the claims that the Government believe should not be taken, it is interesting that the statistics demonstrate that the number of cases is coming down in any event. My noble friend Lady Drake brings a wealth of experience of employment tribunals and employment appeal tribunals. She pointed out that judges already have significant powers in dealing with vexatious claims, so that part of the problem could and should have been dealt with. In our view, this is an unfortunate piece of legislation that, as one of my noble friends said, does not reduce red tape. It adds complexity and tilts the balance against workers. I agree with my noble friends that this order ought to be withdrawn.

[Lord McNally]

My Lords, I thank all noble Lords who have taken part in this debate, many of whom I know have spoken from a wealth of experience of tribunals, ACAS and the trade union movement. It has been helpful to identify and address concerns. Doing so has enabled me to set on record why the Government have decided to introduce fees in the employment tribunal system and, crucially, what has been put in place to ensure that fees are not a barrier to those wanting to access the justice system.

In speaking to his amendment to the Motion on the fees order, the noble Lord, Lord Beecham, expressed regret that its provisions do not effectively protect access to justice, that some claimants will be deterred from bringing claims and that the remission system is inadequate. Neither I nor my government colleagues accept those arguments. We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims. The remission scheme will ensure that those on low incomes can apply to have their fee reduced or waived entirely and, given the importance of the issues at stake, the Government believe it is unlikely that fees alone will deter those with a strong case bringing a claim. These factors, together with the power for the tribunal to order reimbursement of fees paid, will help to ensure that access to justice is maintained for those who wish to bring a claim.

As I have mentioned, we hope that fees will encourage potential claimants seriously to consider options to resolve disputes outside the tribunal system. From 2014, mandatory early conciliation will mean parties cannot bring a claim to the tribunal without first having sought a conciliated resolution via ACAS. Any decrease in claims after the introduction of fees does not mean that claims are being deterred. It is more likely that disputes are being resolved without the need to use the tribunal, which benefits everyone.

The noble Lord, Lord Beecham, raised a number of issues. He asked whether fees should be charged for someone seeking a small amount. All claimants, irrespective of appeal or claim type should make a contribution to the cost where they can afford to do so, and everyone should also think carefully about entering into litigation irrespective of the remedy sought. Claimants should bear the cost of fees where they make an allegation in a claim and fail to pursue it or where the employer is judged to have acted lawfully.

The noble Lord said that the employment tribunal is more expensive than the civil courts. The civil courts do not offer a reasonable comparator in this instance as they charge at up to five points in the court process and fees are set to recover the full cost. Civil courts process significantly higher volumes of claims and therefore have lower unit costs. In the civil courts, parties open themselves to much wider cost powers, so there are different issues to consider.

The noble Lord asked about the changes to the process for the enforcement of awards when fees are introduced. The enforcement of employment tribunal awards is fast-tracked through the civil courts. There are no plans to make any changes as part of the introduction of fees. However, separately the Government have commissioned new research covering England and Wales and Scotland, and the findings are due to be published next year.

The noble Lord asked whether there will be guidance for those paying fees. We will ensure that all users are clear on the obligation to pay fees or to apply for a remission. Existing HMCTS guidance for employment tribunals will be updated to highlight the stages at which fees are payable. There will be fees and remission leaflets to explain the fees payable, how to pay and where to apply for remission.

[Lord Beecham]

Can the noble Lord say whether they will be in force by 29 July? Will they be available by that date?

[Lord McNally]

If they are not, I will write and tell the noble Lord. The noble Lord also raised the question of whether the Government know what the impact will be. It is difficult to predict the impact that the introduction of fees will have on behaviour. It may be reasonable to assume that if people who are thinking about bringing a claim have to pay to do so, they will more carefully consider whether they wish to do so and their chances of success than they would if the process was free. If this is a valid assumption, we would expect the number of speculative claims—and therefore the number of claims overall—to fall. We will review the impact post-implementation to ensure that the remissions system acts to ensure that only those who can afford to pay fees do so. To ensure that the fee-charging process is simple to understand and administer, we will examine impacts on equality groups in the light of experience and will verify the amount of fee income raised.

The noble Lord asked how we will review fees. Fees will be kept under review as part of an ongoing review of fees across the justice system. The review will seek to ensure that the remission system acts to ensure that only those who can afford to pay do so. The noble Lord, Lord Beecham, asked if redundancy payments will be taken into account in a remission of application. No, this is considered a capital payment under the current scheme. We are considering whether to change this as part of our recent consultation on remissions.

The noble Baroness, Lady Turner, raised a number of matters. Let me make it clear: we do not want a frightened or submissive workforce, as she implied. We want a highly skilled, adaptable, highly productive workforce that can compete in the world. It is important that the noble Baroness understands that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims, and we do not believe that the provisions in the order will do so. Given the importance of the issues at stake, we believe, as I said, that it is unlikely that fees alone—

[Lord Lea of Crondall]

The Minister says that it is not likely to deter people. However, the memorandum states that that is the intention.

[Lord McNally]

We will not play with words. Of course, numbers will fall, so in that sense it will deter people. It will enable people to make better-informed decisions about what they are doing.

I pay tribute again to the vast experience the noble Baroness, Lady Donaghy, has of ACAS. I believe that making ACAS a first stop is a step forward and one to be much welcomed. Like all Members of the House I always regret when we are not able to receive the wisdom of the noble Lord, Lord Sugar, in person, but I note that he is in favour of more conciliation. The noble Baroness asked if the introduction of fees undermines the aims of early conciliation. We do not believe so. Fees can encourage parties to resolve their disputes as early as possible. In addition, respondents will be aware of the financial implications of losing a claim, including the ability of tribunals to order them to reimburse a claimant’s fee. Therefore, if a respondent waits to see if the claimant pays the fee, it could increase the respondent’s own cost. The noble Baroness also asked if this is designed to prevent weak and vexatious claims. We do not intend fees to prevent claimants bringing forward claims they believe to be genuine. We intend only that users who can afford to do so should contribute to the cost. If fees were to discourage those bringing speculative claims from doing so, this would be a positive consequence.

The noble Baroness, Lady Drake, acknowledged that this is a simplified scheme, and that is to be welcomed. It neither tilts the balance against workers nor closes the tribunal door. The noble Baroness also made the point that it was particularly disadvantageous to vulnerable people. Our initial analysis suggests that BME groups, women, younger people and disabled people are more likely to fall into the lower income bracket, so these groups are more likely to qualify for partial or full fee remission. The Government believe that it is right and fair that users of the Employment Appeal Tribunal, as with the employment tribunals, make a contribution towards the cost of their case when they can afford to do so. There are clear public policy reasons not to place the full burden on the taxpayer to subsidise fully a user who has already had the benefit of a previous judicial decision.

The noble Baroness, Lady Drake, also asked how fees will incentivise business to settle if only the claimant pays fees. Businesses will be conscious of the financial implications of losing a case, as well as the wider power of the employment tribunal judiciary to impose financial penalties on businesses that act unreasonably. Businesses will also be aware of the power of the tribunal to order them to reimburse the fees paid by the successful claimant.

The noble Lord, Lord Monks, intervened to tell us that, quite rightly, unions will support their members. I think that he was unfair in dismissing the impact of the remissions scheme. He asked whether we are trying to introduce Beecroft by the back door. No, we are not.

Is the court remissions scheme suitable to be used in employment tribunals? Yes, the remissions scheme is based on an individual’s ability to pay and the principles are the same as those that arise in the civil courts.

I fully acknowledge the point made by the noble Baroness, Lady Whitaker, that discrimination occurs in the workplace. That is why we need employment tribunals. There is a danger in overstating the impact of the decisions that we are taking tonight. I take on board the comments that have been made; however, as the noble Lord, Lord Young, said, this will enhance the role of ACAS. The truth is that people who wish to resolve an employment dispute have access to an independent tribunal, which is part of a justice system that is highly respected throughout the world. However, proceedings before the tribunals are costly and the Government believe that it is unfair that taxpayers have to shoulder all of that cost. To share the burden, we are proposing to charge fees to cover about a third of the cost of the tribunal. That, it seems to us, is both reasonable and right.

Those who can afford to will pay a fee dependent on the claim type they are bringing. Because of the remissions scheme we will put in place, no one should be denied access to the tribunal because they cannot afford it. The fees and the safeguards that we have built in represent a fairer way to share the costs of tribunals while fully preserving the principle of access to justice. I commend these orders to the House.

Motion agreed.

EU Treaties: Justice and Home Affairs Opt-Outs

Lord McNally Excerpts

Monday 1st July 2013 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to make a decision regarding Justice and Home Affairs opt-outs under Protocol 36 to the European Union treaties.

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

My Lords, the Government are carefully considering the block opt-out available to us under Protocol 36 to the treaties. On 15 October last year, the Home Secretary announced that the Government’s current thinking was to exercise the opt-out and then seek to rejoin measures that are in the national interest. Further information will be made available to Parliament in due course.

[Lord Foulkes of Cumnock]

My Lords, will the Minister confirm that the Government have been carefully considering this matter for months and months and that the all-party European Union Select Committee unanimously said that the proposal would be a danger and a threat to national security and would undermine our fight against international crime? According to the leaked memo to the Daily Telegraph, it is a fight between his party and the other party in the coalition. They cannot make up their minds. Surely the question of national security and the fight against crime should rise above these party differences. Will he use all his influence to get the members of the Government to think again about this important issue?

[Lord McNally]

My Lords, the passion of the noble Lord, Lord Foulkes, is explanation in itself of why the Government are taking such care and time to look at matters that he himself has acknowledged relate very much to national security and the national interest. That is precisely why the Government are taking their time in making these decisions.

[Lord Hannay of Chiswick]

My Lords, does the Minister recognise that the Government have already overrun the two-month period in which they are meant to respond to reports from your Lordships’ committees —in this case, the European Union Select Committee? If he does, can he say when they are going to respond? Will he perhaps reflect on the possibility that the national interest might be served best by following the advice given by the committee: namely, that there was no convincing case for triggering the opt-out at all?

--- Later in debate ---

[Lord McNally]

I agree with both noble Lords that the European Union Committee’s report was, as one would expect, extremely thorough and thought-provoking: hence the fact that the Government are studying it very carefully. We have written to the noble Lord to beg for a little more time to produce a response. Perhaps I may therefore give him a response with which I am sure he is well familiar: the response will be coming shortly.

[Lord Marks of Henley-on-Thames]

My Lords, in the event that the Government were to exercise the opt-out, what improvements to the European arrest warrant system in particular would in their view be desirable in order to opt back in, at least to the arrangements for combating serious cross-border crime?

[Lord McNally]

My Lords, that is a good example of why we are giving careful thought to this array of measures. The European arrest warrant has played an important role in speeding up extradition arrangements between countries and represents the type of practical co-operation that we should all support. However, despite its success, the use of the warrant for trivial offences has damaged its reputation with many, and lengthy pre-trial detentions have also caused problems in some cases. It is those areas of proportionality and practicality in using the warrant that we are trying to address, both in discussions with our European partners and in looking at the process as it affects our own dealings with this warrant.

[Baroness Corston]

My Lords, does the Minister accept that it does not require what he calls “careful time” to consider the European arrest warrant? Criminals are not fools. If we opt out, they will go and live in Spain, the way they used to years ago, beyond the reach of British law. Given that there is much greater pressure in view of international terrorism, why does it take any time at all to consider this issue?

[Lord McNally]

It takes time because it is part of a range of issues. Nobody is talking about jettisoning all these measures, but some of the proposals in the Protocol 36 decision were written when reference to the European Court of Justice was not in mind. There is a variety of technical reasons why careful study is warranted. I assure the House that the Government will continue, as they have done right through their period of office, to address opt-ins and opt-outs on the basis of national security and national interest. When we have our package to bring before the House, we will ask your Lordships to make decisions on that basis.

[Baroness Smith of Basildon]

My Lords, opting out of Protocol 36 means, as we have heard, opting out of the European arrest warrant. Last week, the Government had to make a Statement significantly revising their figures for the number of criminals who have successfully been returned to the UK under the European arrest warrant agreement. The figures have been wrong for the last three years. Does the Minister believe that we will be more successful or less successful in bringing criminals to justice if we opt out?

--- Later in debate ---

[Lord McNally]

Quite frankly, no. As I indicated in my answer to my noble friend Lord Marks, our assessment is that the European arrest warrant has many many benefits, which we want to profit from. However, in practice, in some places it has shown a lack of proportionality and in other places it has imposed on British citizens long periods of pre-trial detention. It is those matters that we are dealing with. This is not just a tick-box issue; it is a matter of carefully examining a range of proposals. We are greatly indebted to the Lords committee for its analysis, which will play an important part in the decisions that we make.

[Baroness O'Loan]

My Lords, if we do exercise the opt-out from the European arrest warrant, one consequence will be that we will have no extradition arrangements with a huge range of states, most of which have repealed the original extradition legislation. If the Government are contemplating an opt-out, are they currently in negotiation with those Governments to see whether their legislative programmes would enable the passing of legislation either to allow us to go it alone or to allow the lengthy period of negotiation that would be necessary to enter into another arrangement on an arrest warrant?

[Lord McNally]

The noble Baroness puts forward one of the very real problems of a total opt-out: that we would be left with a whole series of bilateral negotiations and no guarantee of success. The more this question has unfolded, the more we see the wisdom of the Government’s considered discussion and thought about what to bring forward to both Houses and that it is fully justified.

Legal Aid

Lord McNally Excerpts

Wednesday 26th June 2013 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government whether, as a result of their plans to reform legal aid, defendants will be able to choose their own lawyer; and, if not, why not.

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

My Lords, the reasoning behind the proposed changes is that they will ensure that contract holders have enough certainty about work volumes so that efficiencies and economies of scale are achievable. However, we are carefully considering the consultation responses to this proposal.

[Lord Bach]

My Lords, I thank the Minister for his Answer and confess to being somewhat—a little—encouraged by it. The choice of lawyer is an essential part of our criminal justice system, as of course is the presumption of innocence. Does the Minister agree with his right honourable friend the Lord Chancellor’s justification of the proposal to abolish choice of lawyer, given in a recent interview in the Law Society Gazette? That seemed to be based on the absurd principle of “too thick to pick”. Or, does he agree with his right honourable friend the Deputy Prime Minister and leader of his own party, who is quoted as saying last weekend that it would be “perverse” to go ahead with this proposal? He cannot agree with both. What is the Government’s position?

[Lord McNally]

The Government’s position is that we put forward a model for competition, as proposed in our transformed legal aid consultation. That said that the client would generally have no choice in the provider allocated to them but that, in exceptional circumstances, a client might be permitted to change their provider. We put that matter out for consultation. As I indicated in my Answer, we are now considering the responses to the consultation and will come forward with further proposals.

[Lord Lloyd of Berwick]

My Lords, does the noble Lord remember a letter that appeared in the Telegraph about a month ago signed by some 70 or more QCs? It said that the denial of choice in representation would lead to what they called a rapid and probably irreversible deterioration in the standards of representation. Does he accept that analysis? If so, is he happy with those consequences?

[Lord McNally]

No, my Lords. When one gets into one of these processes, those kinds of letters are sent to various distinguished newspapers and of course we take note of them. We are doing two things. We have never hidden the fact that part of what we are doing is because of financial constraints. The legal aid budget has to take its share of the burden of our spending cuts but we are trying to do that in a way that retains the fundamental access to justice. We have consulted very thoroughly. We have had some 16,000 responses, which we are working through. We will try to come back with constructive proposals, so long as the legal profession recognises that we have to make the savings that are necessary for the taxpayer.

[Lord Marks of Henley-on-Thames]

My Lords—

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, it was a Labour Question to begin with. If the responses to the consultation demonstrate that there are savings to be made in other areas, particularly in the resource-hungry high-cost criminal cases, will my noble friend’s department use those savings to mitigate the harshness of the legal aid cuts in other areas where the effect of the proposed cuts is most serious?

[Lord McNally]

We are certainly looking across the piece and making decisions. Our current thinking is not to compete crown court advocacy and very high-cost crime cases. We have made separate proposals to reduce fees in this area, which are set out in the consultation. However, my noble friend is right. Under the current system, the most expensive single criminal legal aid case in 2010-12 cost the taxpayer £8.5 million. Under our present system, this would reduce to £6 million. The total cost to the taxpayer of just the top three cases in 2011-12 was £21 million.

[Baroness Scotland of Asthal]

My Lords, I understand that the Minister is able to disregard what 70 QCs have said in a newspaper, but will he tell the House whether the Government intend to disregard their current Attorney-General, who has expressed concerns and who remains the guardian of the public interest and the rule of law? Will they disregard him, too?

[Lord McNally]

On the contrary. The Attorney-General’s advice, which is invariably wise and measured, is taken fully into account in this consultation. I say again: we are going through a consultation and 69 QCs and 300 economists are part of this kind of exercise. Of course there is a free press, but in the end I hope that the legal profession will engage with us in a constructive dialogue. This will allow us to meet the realities of the economic situation in which we find ourselves, but also to meet the realities that were referred to about access to justice and the rule of law. These are important issues and sometimes they can be trivialised by wild statements about their implications.

[Noble Lords]

Shocking.

[Lord McNally]

Shocking? The last Labour manifesto said the party would cut legal aid. For three years, all that I have heard from the Opposition Benches is: “Not this bit of legal aid” or, “Not that bit of legal aid”. No wonder they got into the economic mess they did, because they are frightened of making a decision. We are not.

[Lord Phillips of Sudbury]

My Lords, my noble friend talked about economies of scale. Will he accept that there is an iron law in the legal profession: the bigger the firm, the bigger the fees? Will he have regard to local justice and the cost to somebody accused of a crime of having to travel miles away in order to see his or her nominated lawyer?

[Lord McNally]

These are extremely important issues. They have been raised in the consultation and we are considering them.