Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
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Lord McNally
That the draft regulations laid before the House on 4 February be approved.
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.
Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.
The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.
The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.
I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.
I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.
Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.
Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.
The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.
Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.
However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.
Amendment to the Motion
Lord McNally
My Lords, I thank the contributors to this debate. I have listened carefully to the points they have made. Perhaps I could turn first to the important issue raised by the noble Lord, Lord Bach, on how Parliament does its business and the consequences of its decisions. I would simply remind your Lordships—and the noble Lord had the honesty to do so—of what I said before the House voted on 3 December:
“My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not”.—[Official Report, 3/12/12; col. 490.]
I do not know how a Minister could be clearer in asking the House to consider that before voting.
Another point is that what my right honourable friend the then Lord Chancellor promised was to use his best endeavours to look for a concession. He came back with a concession which made its way into the final Act passed by Parliament. If the Opposition Front Bench ever returned to this side of the House, they would be as reluctant as we are to have reopened debate on the final settlements in any legislation by the use of fatal Motions. I believe that that would prolong the issue and put pressure on every Opposition to say, “The matter is not closed. You could pass a fatal Motion and that will get us a better offer”. I do not think that is the way that government can operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and keeping up pressures which, quite frankly, Oppositions would eventually find difficult to handle. The pressure groups, which quite legitimately keep the pressure on us, would say, “Well, it is not closed now because you could pass a fatal Motion”. That is the point.
It is always flattering to suggest that, secretly, I do not agree with the decision, but I actually do and in part because of my capacity as a business manager in this House. I believe that we gave the House a clear understanding of the consequences. The House took its decision, and that is how the Act is now set.
Turning to the running programme of criticisms from the noble Lord, Lord Bach, again I make no complaint about them. I have said previously that it has been a very strong parliamentary performance, which is absolutely right for someone in the Opposition involved in these areas. I would say, though, that in 2010 we were faced with the situation in which there were going to be considerable cuts in government expenditure. The Ministry of Justice was faced with a budget settlement that had been cut by 23% and, as I have said, it is a department that spends money only on prisons, probation, court services and legal aid.
Lord Howarth of Newport
Will the Minister confirm that the Government have just announced that they are going to spend somewhere between £100 million and £200 million on the modification of the Olympic stadium for the benefit of West Ham United Football Club? Why are the Government so open-handed in their funding of access to sport but so cruelly restrictive in their funding of access to justice? What scale of values does that represent? Should equality before the law not be a non-negotiable and irreducible value?
Lord McNally
That is the point that I was going to make. The noble Lord is extremely good at self-righteous debating points; I almost admire him for that. The fact is, though, that he has been in departments and he knows that they accept budget targets and have to look through their own expenditure.
Lord Howarth of Newport
My criticism was of the Government, and the Minister speaks on behalf of the Government.
Lord McNally
The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.
We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.
I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.
I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.
One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.
In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.
On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.
Lord Phillips of Sudbury
Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?
Lord McNally
I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.
Baroness Whitaker
Before the noble Lord sits down, I am not sure that he quite dealt with the point made by the noble Lord, Lord Phillips, about a culture change. Does he not agree that these regulations mark a complete reversal of our prior ideas about access to justice and equality before the law?
Lord McNally
No, that is why I want to invite a discussion. The term “access to justice” is bandied around very freely. I do not want to provoke him but I see the menacing figure of the noble Lord, Lord Richard, just behind the noble Baroness. He would probably agree that access to justice and access to taxpayer-funded legal aid have never been the same thing and we must not get them confused. Every Government have had to limit this provision. Oh, my God, I see that the noble Lord wishes to speak. As I say, they are not the same thing, but I want this Government and successive Governments to keep the concept of access to justice very much to the forefront of their commitments to the citizen. However, that may be done by adapting the system in a whole manner of ways: for example, in the way that advice is given. The noble Lord, Lord Beecham, was rather dismissive of remote advice, but I think that the use of new technologies will give better access to justice. However, having provoked the noble Lord, Lord Richard, I will give way to him.
Lord Richard
I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.
Lord McNally
Access to justice may also be by other forms of advice. Not all advice is legal advice.
Lord Richard
When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.
Lord McNally
Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.
Lord Phillips of Sudbury
I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—
Lord McNally
Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.
Lord McNally
Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.
Lord Bach
I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.
For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.
The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—
Lord McNally
I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.
Lord McNally
Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.
Lord Bach
I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.
If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.
Civil Legal Aid (Procedure) Regulations 2012
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, when the noble and learned Baroness, Lady Scotland, sat down, having made her usual very powerful indictment, there was a growl of approval because across the House there is an abhorrence of domestic violence and a desire to help the vulnerable, particularly the disabled. However, I ask the House not to take that sympathy into an assumption that all this is being put at risk by a callous and uncaring Government. As I pointed out before, the legal aid bill will still be running at something like £1.7 billion when all this is over, and criminal legal aid is now at just over £1 billion. However, I will not start quibbling over figures with the noble Lord, Lord Bach, as he demonstrated his command of figures earlier in his speech.
I contest, and worry about the impression that will be given because of strong campaigning, that legal aid is somehow removed from these areas. I will try to deal with the points that were made by the noble and learned Baroness Lady Scotland and the noble Baroness, Lady Grey-Thompson. I will also address the points made by the noble Lord, Lord Beecham, which were made with his usual quiet courtesy. The point that I made about remoteness, which is a cold, hostile kind of word, is that we underestimate what new technologies can do to help with access to justice. That is the point I was making. On the point he made about mediation, I certainly am not overclaiming for it. Mediation is certainly not a cure-all. However, I thought that he threw in one very interesting statistic: only 5% of family law cases are contested. That is worth keeping in mind.
On the points made by the new president of the Family Division, I have been in this job long enough to give due deference to the separation of powers and the opinions of the judiciary. Of course, he is right to be very concerned, but I am not sure that the term “desperately unprepared” is fair. I know the amount of effort that has gone in, in my department, to make sure that these changes can be introduced as effectively as possible and that the help we want to give is given to the people who need it.
I will deal first with the points made by the noble and learned Baroness, Lady Scotland. Perhaps I should clarify, for the benefit of readers of Hansard, that perhaps my opening remarks should not have been made and we should have gone straight to the noble Baroness, Lady Grey-Thompson. So my reply came at the beginning of the debate. My plea is that I have been in the House for only 15 years and am still getting used to some of its more arcane procedures. Although my reply was all-encompassing, it probably did not address some of the specific issues that were addressed by the noble Baroness, and by the noble and learned Baroness. Therefore, I will do that now.
Because the noble and learned Baroness, Lady Scotland, deploys such ferocious talents in making a case against what the Government are doing, I worry that she will lead vulnerable women affected by domestic violence into the fear that somehow legal aid will not be available. I am sure that that is not her intention, but it could happen. I will point out that in the regulations that have been published there are 10 separate, distinct qualifications for legal aid. I will not trouble the House by reading them all. They are very precise, and it is simply not true to say that women who are subject to domestic violence will not be able to get legal aid. They will be covered by a wide range of qualifications for entry through the gateway. We should let the system start.
In answer to the point made by the noble Lord, Lord Beecham, and others, we will monitor the impact from day one.
Baroness Corston
My Lords, is the Minister suggesting that my noble and learned friend Lady Scotland is either scaremongering or not telling the truth?
Lord McNally
The noble Baroness is putting words into my mouth. When you start talking about death and saying that people will die because of this, it raises the temperature. The noble and learned Baroness is entitled to make her point—and I certainly would not like her to prosecute me. However, there is a case for the defence and I will try to make it. Part of the case is that the regulations we have set down have 10 specific areas that will qualify women for help in domestic violence cases.
In making her case, some of the figures that the noble and learned Baroness gave went beyond the issue of providing legal aid in family law cases to the much wider problem, which we all acknowledge, of domestic violence and violence against women in our society. It is unfair to use the figures and statistics for domestic violence in general to imply that in the specific and narrow area of legal aid in family law cases there is not a wide range of provisions. I refer the House to the Civil Legal Aid (Procedure) Regulations 2012. For the benefit of the House, perhaps I can write to the noble and learned Baroness and put a copy in the Library, setting out the various qualifications for access to legal aid in domestic violence cases that there will be under our reforms.
Both the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Beecham, raised the question of a possible £60 charge. We have been in negotiation with the professional organisations. As was rightly said, the BMA has raised questions. However, we are asking applicants to provide a simple, standard template letter from a doctor or a nurse—not a medical report—and we see no reason why the charge for a letter from a GP should be more than a simple administration fee. We have arranged for communications to go out from the Royal College of General Practitioners, emphasising that GPs should respond as rapidly as they can and be as sensitive as possible to the needs of applicants. I invite the BMA to give similar guidance as part of its contribution to dealing with these issues.
The case cited by the noble and learned Baroness, Lady Scotland, was certainly harrowing. It is impossible for me at the Dispatch Box to deal with this kind of case. From what she described, I would be surprised if, even under our reforms, there would not be access to legal aid, including a protective injunction that could be applied for in the circumstances that she described. On the question of evidence requirements, we will keep them under review and would welcome evidence of how they are operating.
The noble and learned Baroness raised the issue of simultaneous orders, and whether one could apply for separate orders at the same time. It is possible to combine such proceedings. However, the funding may not be available for the entirety of the proceedings. Funding is available for non-molestation order applications, but in order to receive funding for a matter falling within paragraphs 12 or 13 of Part 1 of Schedule 1 to the Act, the applicant would need domestic violence evidence. I gather from the briefing that I asked for that the noble and learned Baroness may be right: there may have to be two trips. Certainly we will look at whether that will add costs and time to the process.
Are we putting training in place? The Department of Health has worked with the Royal College of GPs to develop an innovative e-learning course on violence against women and children. The course was launched in Liverpool in October 2011. It consists of four modules that aim to help clinicians provide an appropriate healthcare response to domestic violence. There is a similar training for police to spot evidence and act on it.
On the point about cross-examination, judges have certain powers to address the situation, including special measures if necessary: for example, by intervening to prevent inappropriate questioning or by having questions relayed to the witness rather than put directly. The noble and learned Baroness asked about access, and whether there would be an identifiable person co-ordinating complaints of domestic violence in each area. The answer is yes. The guidance provides for links to be provided to the relevant multiagency risk assessment conference, which will be chaired by someone who will take direct responsibility in that area.
The noble and learned Baroness, Lady Scotland, mentioned the problem of women’s refuges being full. It is right that, at the moment, that cannot be used as evidence, but I should like to take that back as part of the early review. She also made the specific request about equivalence in cross-undertakings. There is no provision that cross-undertakings must be of equivalence. However, the cross-undertaking must be given under Section 46 of the Family Law Act 1996. Where it is a general form of cross-undertaking, which is not made under Section 46, but, for example, to aid the smooth running of proceedings, it would not count as a cross-undertaking, but there would have to be equivalence in the cross-undertaking. I hope that that makes it clear.
Lord Beecham
My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?
Lord McNally
The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.
I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.
Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.
On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.
Baroness Grey-Thompson
My Lords, I thank the Minister for his introduction and his response, which were, perhaps, wrapped up together. I thank the organisations that provided me with some amazing case studies and the individuals who have been in touch and explained the immense difficulties that they are currently facing.
In thinking about bringing this Regret Motion, I was fortunate to speak to my noble friend Lady Campbell, who is in her place, who shared some of her experiences of the Disability Rights Commission. It operates a telephone advice line and has perhaps some of the most highly trained people in disability and equity, and they experience difficulties in understanding people with speech difficulties, perhaps because they have cerebral palsy, or with multiple impairments, who speak in a different way. She was able to outline some of their difficulties in being able to clarify their issues. A number of solicitors I spoke to said that people do not present their problems in an easy-to-understand manner. Mind, the charity, which has been part of this discussion, said that it is exceptionally worried that many people with fluctuating capacity could be excluded. A number of organisations have communicated their fear about people being able to access the telephone gateway.
I am a huge fan of technology. It is amazing, it is great if you can afford it, and it is even better if you know how to use it. Young people seem to be born with an ability to make it work, but that is not the case for perhaps many of us. If I look around your Lordships’ Chamber, we have, if I can say it, some of the most privileged people and the brightest, and those with access to the best education, knowledge and experience, but I wonder how many of us use technology. Think about it if you are a disabled person, if you are alone, isolated, going through great difficulty and with immense problems that you are trying to explain to someone else. We have a very long road to enable disabled people and old people to access some of this.
I am very passionate about special educational needs because I went through it. I fought to get into mainstream school before there was a system in place. My father used a single line in the report by the noble Baroness, Lady Warnock. He threatened to sue the Secretary of State for Wales over my right to be educated in a mainstream environment. He was educated and financially privileged. I look round at many of the people who will be fighting for the same thing for their children, and picking up a phone and trying to explain their children’s complex needs does not make any sense to me whatever. I know the noble Lord, Lord Freud, and the Minister have both said, in relation to disabled people, that the Government want to help and support those with the greatest need. I do not believe that that is the case.
The Minister also talked about reasonable adjustments. That is all very well, but it does not measure those who do not or cannot make the first phone call. The fact that the phone number is not free will make it exceptionally difficult for a number of people who do not have credit on their phones and who just cannot even contemplate picking up the phone. I am afraid that I am completely unconvinced by the idea of the third party and the Minister’s faith in that working. I find trying to explain complex needs to somebody who will then explain them to somebody on the phone very frustrating and disappointing.
I still believe that the exemption group is too narrow and that disabled people will increasingly be hidden away. In 2013, disabled people will start becoming invisible as they did in the 1960s and the 1970s when I was young. That is a cost I do not think is worth paying. I wish to test the opinion of the House.
Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013
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Lord McNally
That the draft regulations laid before the House on 4 February be approved.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in moving that these regulations be approved, I shall respond, first, to the Motion in the name of the noble Baroness, Lady Grey-Thompson.
I am confident that the legal aid scheme under LASPO meets the access needs of disabled people. However, I understand that the introduction of the mandatory gateway continues to raise concerns in this area, and therefore I shall address them.
The Government believe that it is unnecessary for regulations to include specific reference to provision for access for disabled people in relation to the mandatory gateway. We have made a public commitment that reasonable adjustments and adaptations to ensure access to legal aid services—legal help—for vulnerable people, including disabled people, will be in place for the gateway.
The gateway is based on the existing community legal advice helpline, which already successfully uses a number of reasonable adjustments and adaptations for all clients. The gateway service will continue to operate these, and the requirement for reasonable adjustments is also specifically included in the contracts of those who will provide the service. Reasonable adjustments will include a third party being able to speak on a person’s behalf, British Sign Language via webcam, and call-back services to minimise call costs for callers.
My officials have met a number of equality organisations to discuss appropriate reasonable adjustments and further enhancements. They have also put in place a system to monitor the take-up of reasonable adjustments and adaptations, and to monitor the disability profile of gateway clients. Regarding the definition of “exempted person”, as debated and agreed during the passage of LASPO, there are three exemptions to using the gateway for accessing legal help, set out in regulation 20 of the procedure regulations. In summary, these are: a child under 18 years of age; a person who has been deprived of their liberty; or a person assessed by the gateway in the previous 12 months as qualifying for gateway work to be provided by face-to-face advice and who is seeking further advice on a linked matter. It should also be remembered that the gateway provides legal help only, not legal representation. So I do not consider that the definition is drawn too narrowly.
I am aware that others feel that a further exemption for vulnerable people would provide additional protection. I do not believe that that is necessary. The term “vulnerable people” covers a wide range of individuals with particular needs or issues. While some of those to whom the term might be applied may not be able to use the telephone or the other methods permitted to give instructions and receive advice, others will. The Government’s view is that the best way to test suitability for telephone or online advice is through an assessment of each individual’s needs and abilities, not through a blanket exemption for the extremely broad group defined as vulnerable people. The Government are confident that the gateway call operators and specialist telephone advice providers will be sufficiently experienced and trained to support vulnerable people. We plan to review the implementation and operation of the gateway in the initial three areas of law, to ensure that the exemptions, adjustments and support available properly protect those with disabilities and vulnerable people more broadly. We will publish a report of the review within two years of implementation. I hope that that meets the concerns of the noble Baroness, Lady Grey-Thompson.
I turn now to the Motion tabled by the noble and learned Baroness, Lady Scotland. At the outset I must refute the suggestion in the Motion, and in some of the comments made, that as a result of our reforms domestic violence victims will be at greater risk of injury or death. This has been suggested at various points during this debate and the passage of the Bill, and it is entirely untrue. Let me be clear: legal aid will continue to be available to help victims to obtain the full range of court protection against domestic violence in exactly the same way as now. There is no evidential requirement for legal aid for these remedies. Those who need legal aid to protect themselves will be able to get it.
The issue, therefore, that is legitimately up for discussion is whether we have made the right provisions for victims of domestic violence. In particular, it is whether we have set the right evidential criteria for someone to show that they are a victim of domestic violence so that they can qualify for legal aid for their private family law issue. I am clear that we have. We have moved a great distance in this area since the LASPO Bill first came into Parliament. We listened to the concerns of this House in particular, and the regulations before us today reflect the position that was agreed in both Houses before the Act gained Royal Assent, and in certain respects, it goes even further.
Of the forms of evidence listed in the regulations, a finding of fact is particularly important. A finding of fact made in proceedings in the UK that the applicant has been the victim of domestic violence, no matter how long ago it occurred, that gave rise to a risk of harm to the applicant, is acceptable as long as the finding was made within the 24 months before the application for legal aid was made. Our position on the evidence requirement was agreed by Parliament as reasonable during the passage of the Act and I remain of the view that it is both sensible and comprehensive. There has been a specific concern that GPs and others may charge for producing the evidence and that people may not be able to afford such charges. It is perhaps worth highlighting the fact that legal aid was never designed to deal with the costs of actually acquiring legal aid, whether this be the cost of a telephone call or evidence. I do not think it unreasonable to continue that policy here. Many of the forms of evidence, such as protective injunctions, will not attract a charge at all. We expect any charges that are applied to be modest. I cannot pretend that we have absolute control over charges—we do not. However, we have included in the regulations provisions for other health professionals to provide evidence to help mitigate against possible charges by GPs.
We have produced guidance and a template letter following discussion with the relevant professional bodies to make acquiring the evidence as simple and straightforward as possible for both applicants and those providing the evidence. We will continue to liaise with relevant bodies about the impact of our reforms to ensure that, where necessary, changes are made.
I also highlight the fact that we have now also changed the definition of domestic violence in the Act to reflect the amended across-Government definition that will come into force at the end of the month. This followed the clearly expressed view in Parliament that the definition should reflect that adopted across Government to ensure clarity of meaning. I am sure that the House welcomes this change. I would also like to reassure noble Lords that the Government will be closely monitoring the way in which the system is working from day one of the implementation and the way in which the evidence requirements are working. If concerns are raised we will take steps to address them.
I hope that that meets the concerns of the noble and learned Baroness, Lady Scotland, and others, as they have expressed unease with the Government’s approach. We are continuing to listen on these matters. I beg to move.
Prisons: Suicide
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Lord Sheldon
To ask Her Majesty’s Government how many people have committed suicide in prisons since January 2000.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the figures we hold on suicide are classified within the data on self-inflicted deaths. There were 960 self-inflicted deaths in prison custody between January 2000 and September 2012. Annual numbers have reduced from 92 per year in 2007 to 57 in 2011.
Lord Sheldon
My Lords, by last week there had been 982 suicides since 2000, including 15 children under the age of 18. Staff in prisons try to reduce those deaths but suicides continue.
Lord McNally
My Lords, inevitably it is true that suicides continue. But there has also been a concerted effort by the prison authorities and those with responsibility for the youth estate to try to avoid as far as possible these dreadful circumstances—dreadful for the prison staff who have to deal with them and dreadful for the families who have lost loved ones. The noble Lord makes the point that suicides continue. I would say that that is against a background of great efforts by the authorities to try to continue the welcome reduction of recent years.
Baroness Linklater of Butterstone
My Lords, any suicide in custody is terrible and a cause for real concern, but when children commit suicide it is an absolute tragedy. Three children have died in the past 18 months or so, as recently reported by the Prisons and Probation Ombudsman in Wetherby, Hindley and Cookham Wood YOIs. Can my noble friend the Minister please tell the House what action the Government are now going to take to ensure that these exceptionally vulnerable children—as these were—are not held in young offender institutions but in facilities that are better suited to meet their very particular and challenging needs?
Lord McNally
My Lords, my noble friend is right. There have been three recent deaths—the first in youth custody for more than five years, so it is important to keep these numbers in perspective. The Youth Justice Board—YJB—which is responsible for the placement of young people in custody, is working closely with the Department of Health in the development of the comprehensive health assessment tool to screen and assess the needs of young people aged under 18 on reception. The Department of Health has developed a youth justice health and well-being needs assessment toolkit, which is now available to help with the planning and commissioning of health services for young people across the justice system. I should also add that the three recent deaths have been investigated by the Prisons and Probation Ombudsman.
Baroness Finlay of Llandaff
Since the instance of two or more mental disorders among the prison population is estimated to be 15 times that of the rest of the population and up to 35-fold higher in female prisoners, despite the assessment that the Minister referred to and despite the fall in suicides, there remains a major treatment problem for prisoners with mental health disorders, particularly when they move around and do not have stable placements. How is this going to be addressed by the Ministry of Justice and how will the changes to the NHS affect the provision of mental health services in prisons?
Lord McNally
The noble Baroness is correct. One of the abiding problems of our Prison Service is the need of so many prisoners in the criminal justice system for mental health support. We are talking with the Department of Health to make sure that we can assess prisoners and that those who are in need of mental health support are given it. Since 2007 all establishments operate an individually focused care planning system for prisoners identified as being at risk, the key benefits of which include an initial assessment and faster first response, the provision of flexible individual accountable care, better sharing of information and a multidisciplinary approach. I do not underestimate the fact—
Lord McNally
I know it is too long but it is worth getting on the record that the problems of mental health within the prison population remain and we need a more holistic approach to solving them.
Lord Elton
My Lords, my noble friend referred to prisoners identified as being at risk of suicide. Can he tell us how many of those there are currently, how many are identified as having mental health problems of any sort, and how many staff there are who are qualified to deal with their mental health illnesses while they are in prison?
Lord McNally
On the latter issue I will have to write to the noble Lord. On any one day in the Prison Service it is estimated that there are about 1,500 prisoners who are under care and supervision out of concern for the danger of self-harm or worse. I will have to write to the noble Lord about the actual number with mental health issues.
Lord Harris of Haringey
It must be this side’s turn eventually. I declare an interest as chair of the Independent Advisory Panel on Deaths in Custody. Given the importance of properly investigating the deaths, particularly of young people but of anyone who dies unexpectedly in prison, is the Minister satisfied with the level of resources available to the Prisons and Probation Ombudsman to carry out their function and, secondly, does he not agree that it is time that the Prisons and Probation Ombudsman was made statutorily independent of the Ministry of Justice and the Prison Service?
Lord McNally
On that latter point I will have to take advice. I pay tribute to the noble Lord for his appointment to the independent advisory panel. It was set up in 2008 and its shared purpose is to bring about a reduction in the number and rate of deaths in all forms of state custody and to share the lessons that can be learnt from these deaths. The ministerial board incorporates senior decision-makers, experts and practitioners in the field. This extended cross-section approach to deaths in custody allows for better learning and sharing of lessons across the sector.
Prisons: New Prisons
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The Lord Bishop of Liverpool
To ask Her Majesty’s Government what plans they have to ensure that all new prisons are environmentally sustainable.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Building Research Establishment environmental assessment method—BREEAM—sets the standard for best practice in sustainable building design, construction and operation, using recognised measures of performance set against established benchmarks. All new prisons are required to be BREEAM-assessed to a standard of excellence.
The Lord Bishop of Liverpool
My Lords, I thank the Minister for that very encouraging reply. Does he recognise that sustainable prisons, with productive gardens, workshops and even small farms, can help with rehabilitation and reduce reoffending, especially among the very high proportion of prisoners with mental illness?
Lord McNally
My Lords, the right reverend Prelate is correct, and that is why new prisons are designed to be able to facilitate opportunities for work, education, training and rehabilitation. That is the benefit of a new-build policy.
Lord Beecham
My Lords, will the Minister ensure that in addition to being environmentally sustainable, new prisons are located in places that are not too far removed from the places whence the prisoners have come and where they might find jobs after their release?
Lord McNally
My Lords, as part of the rehabilitation revolution we are looking at a release programme for prisoners whereby they can be located in a prison that gives them a chance for suitable training and, as I think I have mentioned before, with an emphasis on “through the gate” support after they leave prison, if possible in locations close to where they are going to live thereafter.
Viscount Bridgeman
My Lords, can the Minister assure the House that the new building programme will eliminate or reduce the problem of churning, which causes such distress to prisoners’ families?
Lord McNally
If we can get a secure, stable estate and a prison population that is not overcrowded, certainly. A lot of attention is given by prison management to locating prisoners close to families. As my noble friend will appreciate, there are other matters that have to be taken into consideration in ensuring that each prison is stable and well managed.
Lord Patel of Bradford
My Lords, with an ever increasing prison population—there are more than 84,500 men, women and young people in our estate—and with 46% of adult prisoners having 15 previous convictions or cautions, it is clear that prison is not working. Rather than building new prisons, what action are the Government taking to divert people from the prison estate in the first place?
Lord McNally
Indeed. I have drawn attention before to the very high number of people in prison. While we are building new prisons, we are also closing old prisons. Our older prisons are ill equipped for rehabilitation. I hope that the proposals that we will be bringing forward on the rehabilitation and management of offenders will address some of those issues. I could not agree more that there are better ways of spending taxpayers’ money than on circulating repeat offenders through our prison system.
Baroness Trumpington
My Lords, may I stretch the words of the Question a little further to include farming? Farming was formerly part of a prisoner’s range of choices, particularly with a view to future jobs and a lifestyle. Apart from that, the meat that they provided from pigs and cows was fed to the prisoners and was perfectly delicious, as I know from Pentonville prison.
Lord McNally
I think it was possible to have prison farms in the past. My noble friend is right about both the sustainability of such regimes and the benefit to prisoners. I am not sure that present circumstances would allow that, but I recently visited a prison in the north-west that had opened up a section of the land to develop an under-glass market garden. That was being very well used by the prisoners, who had gained great benefit both from the training that they received there and the personal satisfaction that such work gave.
Lord Elton
My Lords, my noble friend acknowledged the value of rehabilitation. Will he acknowledge the even greater value of people being prevented from getting into crime and say what plans there are to start skewing the budget away from punishment and towards prevention?
Lord McNally
The Government’s whole policy is to try to divert people from crime. We are looking to develop many more mentoring schemes to enable people who are vulnerable to be helped with their addictions and problems in a way that will divert them from crime.
The Earl of Listowel
My Lords, can I ask the Minister from the Cross Benches whether he is aware of the excellent example set in this regard by Wetherby young offender institution, where the young men have dug out a pond, tend their animals and can fish? It seems an excellent achievement by that institution.
Lord McNally
I am aware of that scheme, although I have not had an opportunity to visit it. However, it illustrates the wisdom of the right reverend Prelate’s follow-up point: that in the environment there are many possible solutions to reoffending and for rehabilitation.
Lord Marks of Henley-on-Thames
My Lords, does my noble friend the Minister agree that a great deal of international experience supports the right reverend Prelate’s point? In Hong Kong, there is a new 1,400-bed women’s prison, and a large number of units in the United States. Initial evidence shows that in such prisons there are important human, behavioural and social benefits as well as the obvious financial and environmental ones.
Lord McNally
I agree with my noble friend. Despite what the reports say in certain sections of our media, there is a far better chance of rehabilitating people in decent and humane conditions than in antiquated and inhumane ones.
Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013
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Lord McNally
That the Grand Committee do report to the House that it has considered the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013
Relevant documents: 16th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the order implements the revised Code of Practice on Adult Conditional Cautions, which provides the framework in which conditional cautions operate and will come into force the day after the order comes into force.
Conditional cautioning for adults currently operates under a code of practice approved by Parliament in 2009. Amendments have been made to the Criminal Justice Act 2003, which requires the code to be updated by this order. Part 3 of the Criminal Justice Act 2003 as amended allows an authorised person, usually a police officer, or a relevant prosecutor, usually the Crown Prosecution Service, to offer a conditional caution to an adult offender aged 18 or over. Before the conditional caution can be offered to an offender, he or she must admit to committing the offence and agree to accept the conditional caution and the conditions attached. The police or prosecutor must be satisfied that there is sufficient evidence to prosecute and that it is in the public interest to offer a conditional caution. If, once the conditional caution has been administered, the offender fails to comply with the conditions, he or she may be prosecuted for the original offence. Conditional cautions cannot be imposed on an offender, and the code of practice makes this clear. In every case, the offender must agree to accept the conditional caution and the conditions that are proposed. He or she may, for any reason, choose to decline the offer of a conditional caution and opt instead to be prosecuted.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made two amendments to the conditional caution framework as set out in the Criminal Justice Act 2003. First, it enabled the police to offer a conditional caution and to set and vary conditions by removing the requirement for a prosecutor to authorise such decisions. Secondly, the 2012 Act introduced two new conditions that can be attached to a conditional caution and offered to relevant foreign offenders—that is, those offenders who do not have permission to be in the UK. These new conditions have the objectives of bringing about the departure of foreign offenders from the United Kingdom and ensuring that they do not return to the UK for a period of time.
Alongside these amendments to the code of practice arising from the legislative changes, we took the opportunity to look at the existing guidance within the code and made further amendments to clarify and strengthen it. We have, for example, strengthened what is said on selecting appropriate conditions and on offering a conditional caution to offenders with mental health issues and making sure that they understand the implications of accepting it.
The Criminal Justice Act 2003 sets out the procedure for revising the code of practice. First, the Justice Secretary must agree a draft for publication with the Attorney-General. The Justice Secretary is then required to publish that draft code of practice and consider any representations made by respondents. A public consultation took place on the draft code from 4 October 2012 to 1 November 2012. The consultation was sent to criminal justice practitioners, such as police and prosecutors, as well as to stakeholder groups, such as the Magistrates’ Association and the Law Society, and third-sector groups, such as Mencap. In total, 37 responses were received—on the whole positive responses which welcomed the guidance—which we considered, and some further revisions to the draft code were then made. The revised code has been approved by the Attorney-General and the Justice Secretary and a copy of it and the Government’s response to the consultation were placed in the Library of this House as well as on the Ministry of Justice website. The draft order and the code of practice were laid before Parliament in January this year.
In addition to the code of practice, the Director of Public Prosecutions issues operational guidance on the approach for police and prosecutors to take when considering whether a conditional caution may be an appropriate response to an individual offence. The DPP is revising his guidance following the legislative changes and the changes made to this code of practice. This order brings into force the code of practice which will provide the framework in which police and prosecutors make decisions on whether a conditional caution is an appropriate response to a criminal offence. It will allow conditional cautions to be used to provide the opportunity for offenders to make swift reparation to victims and communities and for offenders to be directed into rehabilitative services to tackle the causes of their offending behaviour. Conditional cautions will also allow the removal from the UK at the earliest opportunity of those foreign offenders with no permission to be here who have committed a crime. We believe that this is a useful tool and are working with the UK Border Agency to ensure that the conditions are implemented and enforced robustly to ensure that public protection is maintained.
If the order implementing the revised code of practice is approved by Parliament, it will be implemented across England and Wales from 8 April 2013 alongside the commencement of the amendments to the Criminal Justice Act 2003 made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. I commend the draft order to the Committee, and I beg to move.
Lord Beecham
My Lords, I will. I was making the point that this case exemplified the arguments that are being made about the Government’s defective consultation procedure, but that is a preliminary point and does not go to the substance of the matter, and I do not expect the Minister to accept any responsibility for what seems a flawed process. I suspect that it is not a matter to which he would have given any material consideration.
On the other hand, the Minister will be aware that there is considerable concern about the number of cautions now being offered in lieu of possible prosecution and a feeling that this is to some extent being used by some police forces as a device to, shall we say, depress the level of recorded crime. There is at least that concern. Whether it is justified is another matter, and I would not for a moment suggest that all police forces are succumbing to that temptation, but there is a feeling that there is an issue, and one has to bear that in mind as we look at extending the system in the way that these proposals do. A cynic might indeed wonder whether this might be another way of reducing the criminal legal aid bill, about which the Minister and his colleagues are so exercised, but heaven forfend that I should be susceptible to such a cynical standpoint.
However, there are a number of points to be raised about these proposals. In terms of conditional cautions, they shift the responsibility entirely on to police officers, at least if they chose to exercise the power given to them. Will the Minister indicate what follow up there will be in terms of consultation about the way the new system is working? Now that we have elected police commissioners—which is not something that I or my party have ever favoured—presumably they will be involved in any consultations, as chief constables would be. Will the Minister indicate whether it is intended to set up a process to monitor the way the new powers are being used and how frequently those consultations will be carried out?
There is also a question about the guidance which the Director of Public Prosecutions is to issue. Once again, we have secondary legislation without the accompanying guidance on how matters are to be used. That is a most unfortunate defect in the procedure. The potential problem is that this new system will be carried out in different ways in different areas. Surely there ought to be a degree of consistency, which, no doubt, the guidance would seek to promote, between what happens in different police authority areas. Again, the question arises of what steps the Government will take to ensure as far as possible that there is a degree of consistency.
On foreign defendants—of course, they will not be defendants because there will not be a prosecution, so let us call them foreign offenders for the purposes of the debate—I invite the Minister to respond to the possible doubt that this may be a convenient way of dealing with foreign offenders without the expense of a trial, but possibly at the expense of visible justice so far as victims are concerned. Will the guidance indicate the level of offence that it would not be deemed appropriate to be the subject of a conditional caution, with the condition of deportation attached to it? Deportation may well be desirable, but it may also be desirable for an offence to be dealt with through the courts in the normal way.
We do not oppose the principle of the order. It is certainly worth pursuing the option of conditional cautions but, as the Minister recognised, we have some reservations about how the system might work in practice. It is new, and I hope that we can have an assurance that there will be a proper review of progress, perhaps in a year or two, to see how the system is working in practice and, in particular—I repeat—whether there is consistency in practice across the country which one would think would be desirable, if only to retain public confidence in the new process. I reiterate the request that in future guidance that will be crucial to the operation should be available for consideration before the secondary legislation goes through your Lordships’ House and the other place.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Beecham. As usual, he is constructive in his questioning and I will try to be equally constructive in my responses. I am informed by my noble friend Lord Wallace that there was indeed a good and robust debate about consultation in this Room yesterday. Where I cannot follow the noble Lord, Lord Beecham, is in his description of consultation in this case as being either defective or flawed. It was short but effective. We were working against a pretty tight timetable to deliver the LASPO reforms in place and on time.
I take the point that there was not perfect synergy between the coming into office of the new police commissioners and our consultation, but it was interesting that more than half the responses to the consultation came from police forces or ACPO. As I indicated, the overwhelming response to the consultation was favourable to what we are trying to do. The noble Lord, Lord Beecham, was right to raise the question of consistency in the application of these proposals. That is part of a broader approach that we are undertaking at the MoJ to try to make sure that statistics about policing and courts are more widely known so that we can see the effectiveness of any such measures and any variety in their implementation.
We are supporting the Association of Chief Police Officers in its work to develop local scrutiny arrangements for out-of-court disposals. These will consist of a retrospective look by a range of criminal justice professionals at how an area uses these disposals, and it will look at individual cases to see whether they raise any training needs. We are working with the senior judiciary to establish how we harness the unique knowledge and experience of magistrates in these arrangements.
The noble Lord, Lord Beecham, also asked whether there was a kind of inflation in the use of out-of-court disposals. It is true that there was a significant increase after 2007, but that was not at the expense of convictions, the figures for which have remained broadly stable. Part of the reason for the increase was targets imposed by the previous Government that created an incentive for criminal justice agencies to criminalise low-level offending by administering cautions where otherwise they may have taken no further action. After those targets were replaced, the number of out-of-court disposals since 2007 has declined by about 43%.
The noble Lord asked for which offences conditions for foreign offenders will be available. The foreign offender conditions will be available for the same offences as the other types of conditions. However, it is right to make these conditions available for more serious offenders—for example, where the likely sentence, if prosecuted, would be a period of imprisonment. We believe that for foreign offenders who have no right to remain in the UK and admit to committing certain offences, the public interest is better served by administering a caution and promptly removing the offenders from the UK, rather than prosecuting and potentially imprisoning them at the taxpayer’s expense, only to remove them from the country once the sentence is completed. Where the public interest requires it, serious offences committed by foreign nationals will, of course, continue to be prosecuted.
The noble Lord raised the question of the DPP guidance. This will set out the circumstances when the police can offer a conditional caution and when they should refer the matter to the CPS. The police will be able to offer a conditional caution for a summary-only or triable-either-way offence but the decision in an indictable-only offence should be authorised by a prosecutor. In a case of whatever seriousness, the police can seek advice from the CPS on the appropriate disposal decision. This brings conditional cautions into line with the current situation on simple cautions.
On the question of the timing of the DPP guidance, I agree with the noble Lord. It is unsatisfactory. If I was in his place, I would grumble. Parliament is right when it says that it has not been given the whole picture on these things. I am asked to assure him that one of the advantages of delaying is that we will be able to take this debate into account as we put the guidance forward. I can already see how convinced the noble Lord, Lord Beecham, is by that bit of sophistry; I sense waves of a feeling of treachery from behind me. As a parliamentary practitioner, I think that it is far better when Parliament gets the whole picture when making a decision. I also appreciate the pressure that we are putting our officials under.
Returning to the matter of foreign offenders, we will, of course, also take into account the views of victims. However, I think there is a general feeling that a sensible way of dealing with these offenders will be to get them out of the country and not put the taxpayer through the cost of prosecuting and possibly incarcerating them. We will keep these matters under review. The aim is to provide a consistent system, based on a clear framework of guidance, while giving flexibility to the police to make common-sense decisions. I hope that we will have an opportunity to gather together the results of the ACPO research, to which I referred, and perhaps at some stage publish it to promote further discussion. As the consultations indicated, there has been a broadly favourable approach to it. The points about ensuring consistency and proportionality, raised by the noble Lord, Lord Beecham, are well taken, but I still have no hesitation in recommending the order to the Committee.
Lord Beecham
Will the Minister confirm that the review will provide information not only on the number of orders made but on the number in respect of which breaches have occurred? In fact, it might be helpful to have a picture of what is happening in terms of breaches of the existing conditional order system, not, obviously, immediately but as part of that review process. Will he agree to ensure that that takes place?
Lord McNally
Yes, I readily agree to that. As I said before, one of the things that are very central to MoJ policy is the gathering of relevant statistics. The noble Lord talked about breaches. That is a very relevant statistic in terms of seeing how effective this measure is. We want to make use of the ACPO research and the information that the MoJ is gathering to analyse the measure’s effectiveness. As I say, I readily agree to that.
Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013
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Lord McNally
That the Grand Committee do report to the House that it has considered the Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013.
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Committee is considering the two draft orders: the Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act Order 2013, which I will refer to as the amendments order, and the Transfer of Tribunal Functions Order 2013, which I will refer to as the transfer order.
The orders before us today are part of a series that facilitate the transfer of the functions of a range of tribunals into the First-tier and Upper Tribunals. These orders will enable us to establish a new chamber in the First-tier Tribunal, which will be known as the Property Chamber and will transfer the functions of a range of tribunals into the unified tribunal structure. The Property Chamber will deal with land registration, residential and leasehold property, rent and housing matters and in relation to park—that is, mobile—homes. Subject to parliamentary approval, it will be launched on 1 July 2013.
The purpose of the draft amendments order is to add the rent assessment committees and the agricultural land tribunals to the relevant parts of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007. That schedule lists the tribunals that can be transferred into the unified tribunal structure; in this instance, into the First-tier Tribunal and the Upper Tribunal. It is the addition of these tribunals into the appropriate parts of the schedule that activates the powers of the Lord Chancellor to transfer their functions into the tribunals.
Transferring the functions is the purpose of the second draft order, the transfer order. It will transfer to the Property Chamber of the First-tier Tribunal the functions of residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—which are composed from the members of rent assessment panels—in England; the agricultural land tribunal in England; and the Adjudicator to Her Majesty’s Land Registry in England and Wales.
It might be worth me going into some detail about why the Government are taking this action and why it is necessary. I think it would be helpful to give some background to tribunals in general and the Property Chamber in particular. Over the past few decades, a number of tribunals have been created to bring together specialist knowledge and expertise to resolve disputes, but they were first recognised as part of the justice system of the United Kingdom in the Franks report of 1957. From then until the turn of this century, a network of tribunals evolved, each with different rules of procedure, with varying powers and different sponsoring government departments.
It was apparent that this haphazard approach to creating tribunals was neither efficient nor economical. In 2004, the Government, through the Lord Chancellor, invited Sir Andrew Leggatt, a former Lord Justice of Appeal,
“to review the delivery of justice through Tribunals”
in England and Wales. The Leggatt report was the result of the review. The report recommended extensive reforms and set out a programme for developing a unified tribunals system. Following the report, the Tribunals, Courts and Enforcement Act 2007 was passed to implement its recommendations. This Act established a two-tier tribunal system, independent from decision-making government bodies, with a First-tier Tribunal and an Upper Tribunal. The Act also provided a number of powers to effect the transfer of existing tribunals or direct new appeal rights into this system.
A system of chambers was established within the two-tier structure, which enabled specialist tribunals with related jurisdictions to be brought together. This arrangement brings a number of benefits by providing cohesion and consistency within the system and allows judges and panel members to be deployed across jurisdictions as appropriate. From November 2008, the Upper Tribunal and the First-tier Tribunal took over the jurisdictions of a number of existing tribunals. Since then, further tribunals have been brought into the new system.
We are now at the stage where a unified tribunals system is almost completed. There are now are six chambers in the First-tier Tribunal and four chambers in the Upper Tribunal. In 2011-12, almost 740,000 applications or claims were received by tribunals. In the same year, more than 730,000 cases were disposed of. The matters dealt with by tribunals are wide-ranging, and cases range from those that can be determined on paper to those that are complex and involved and take a number of days to hear the issues.
When the Property Chamber is launched in July it will be the seventh chamber in the First–tier Tribunal and will bring together jurisdictions concerned with property and lands. These are residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—all which are composed from the members of rent assessment panels—the agricultural land tribunals and the Adjudicator to HM Land Registry.
What will happen to these three tribunals when the Property Chamber is launched? In short, they will cease to have any functions in England, although they will continue as before in Wales. Their jurisdictions will be transferred into the new tribunal. All the judicial office holders and panel members in post at the point of the transfer will become a transferred-in judge or member of the new tribunal. These jurisdictions deal with a wide and diverse range of issues, some of which are technical and complex. They include cases concerning residential property, including rent, park homes and leasehold disputes, issues over agricultural land and disputes about registered land in England and Wales, most of which will be referred to it by the Land Registry.
Why is the Property Chamber being created? Currently, the three jurisdictions that will transfer into the chamber operate independently of each other. They have their own sets of procedural rules, different terms and conditions for office holders and administrative staff, various locations and diverse practices. The benefits of creating the chamber are clear: it will be the centre of expertise for matters relating to land, property and housing; it will bring greater consistency in decision-making and effective case management, with one set of rules for all the jurisdictions; there will be administrative efficiency leading to a reduction in costs; it will enable good practice to be spread across the jurisdictions, also leading to greater efficiency; it will allow more flexible and efficient judicial deployment; and it will deliver administrative efficiency, leading to a reduction in costs.
There is no doubt that the creation of the Property Chamber in the First-tier Tribunal and the transfer of the jurisdictions into the chamber will mark a significant milestone in the achievement of the long-held vision of a unified Tribunals Service. It will signify a further step in delivering the chamber structure within the First-tier Tribunal, as envisaged by the Tribunals, Courts and Enforcement Act 2007. I therefore commend these draft orders to the Committee, and I beg to move.
Baroness Gardner of Parkes
My Lords, I wish to speak on this because I feel that the statements that are being put forward are not necessarily as good as they sound. My interest in property is in the register, but I state again that I have a personal interest. However, my interest is much wider than that; it is also about other people. I have asked the noble Lord, Lord McNally, Questions on the Leasehold Valuation Tribunal in particular. He replied by letter and it was very interesting. I was concerned because at the moment the applicant cannot be asked to pay more than £500. Under the new proposals, the amount will vary from £65 to considerably more—over £500—but no one quite knows where they will come in that scale. If there is a hearing, you might be asked to pay another £190 for it. That is the minutiae of the answer, which I think is worth putting on record. Over the years, the amount has never varied. Although when we established the Leasehold Valuation Tribunal in 1996, we had hoped that the amount would never vary, we cannot expect prices to remain static for ever. That is an incidental point.
I am concerned about the whole structure of the Leasehold Valuation Tribunal going into the Property Chamber. I was particularly concerned when I read the Explanatory Memorandum supplied with the order. At paragraph 3.1 it refers to Paragraph 22 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 which,
“alters the type of power used for prescribing one particular fee … and inserts a negative resolution procedure”.
That is considerably weaker than the affirmative procedure but, nevertheless, I am just pointing out that that is what is proposed.
I am more concerned by paragraph 3.3 of the document, which states:
“The Upper Tribunal already hears unlimited onward appeals from residential property tribunals”.
That was always envisaged. It was always envisaged that the first stage would be within the means of ordinary people. There is a separate argument here which I shall bring up on the Enterprise and Regulatory Reform Bill, on which I propose to table amendments on a number of issues. I am sorry to say that on some issues I have been told that the difficulty is to get the Ministry of Justice to co-operate sufficiently to get important changes through on housing issues. That is not good enough. I draw that to the Minister’s attention. Those amendments will be coming up at Third Reading on 20 March, and I hope that the Ministry of Justice will have looked at things a bit thoroughly by that time and got things going because it is important to realise that this is a very dramatic change.
The suggestion in the Explanatory Notes that they will all be expert people is quite frightening because a separate matter in the housing issue that we have been talking about is that the management, who are not supposed to be putting up big legal people in round one, which was for the ordinary person to bring their case, are now bringing in very expensive legal people and, what is worse, the cost of that, win or lose, is charged back to the people who brought the application for £500 because it is claimed to be a legitimate management expense to provide the most expensive lawyers. Going back to 1996, when this Act went through, it was always acknowledged that when it came to the upper-level tribunal major experts and huge fees would be involved and everyone realised that at that point the large property owner or the person or company who had multimillions of pounds would be at a huge advantage because they could afford to employ such people, but the lower level was always meant to help the ordinary person and give them a fair go. I am concerned about whether that is going to continue. I am being quite tough about this because it is not often that I get the opportunity to have this word in the ear of the people who come from the Ministry of Justice, whereas poor old housing suffers from me all the time.
Then we get to the residential property tribunals and the three that will be changed over. I have no views on the agricultural side because I know nothing about that and I would not attempt to mention it. However, the leasehold valuations, the rent tribunals and the rent assessment committees are all property issues. Another major issue with property, which again is a justice situation, is why do we not have one decent housing Act? Is it not time to consolidate housing? When I tabled a Question on this issue, I was told by the former Lord Chancellor, the noble and learned Lord, Lord Mackay, exactly what wording to put in so that the justice department would answer it. Instead, it was answered by the communities department again. The Ministry of Justice did not answer it at all. I thought that was rather a tragedy because the noble and learned Lord had told me that with that wording it could not be replied to by anyone other than the Ministry of Justice. There is something wrong with the system if things are not getting through. It could be that we are not getting any response because the justice department is not even aware of what we are asking.
Lord Beecham
My Lords, I am sure that the Minister would join me in congratulating the noble Baroness on using her professional expertise to fill the gap in the Tribunals Service for so long, consistent with her other cavity filling over the years. She raised an interesting topic—that of costs. Given that we now have a range of tribunals being brought together, could the Minister indicate whether there will be a uniform charge or whether it will be differentiated between the different categories with which the new property tribunal would deal? As she implies, that could potentially be quite a significant issue. It also raises in my mind a question about legal aid, which of course is now not available for First-tier Tribunals. Could the Minister give an assurance that nothing in these orders will diminish access to legal aid or advice over and above that which, as we know, would affect other categories of case, which we have discussed at some length and may do so again in some not so distant future, around aspects of welfare law?
In that context, I ask about one passage in the Explanatory Memorandum to which the noble Baroness referred, at paragraph 3.3.5. It says:
“Section 11 of the 2007 Act imposes a requirement of permission to appeal from the First-tier Tribunal to the Upper Tribunal”.
Of course at the time that that Act was passed legal aid would have been available. I understand that it will no longer be available for the purpose of obtaining that permission. I regret that position, which we have already debated at some length in the Chamber. The paragraph goes on:
“Amendments provide for this requirement to apply to the entire breadth of the onward appeal, even where the right of appeal from the First-tier Tribunal decision goes wider than a point of law”.
I am not sure what is implied by that paragraph, either in relation to its substance or to the availability of legal advice and assistance for those who might be otherwise financially entitled to it.
Another question that I have is whether valuation tribunals—that is, ordinary valuation tribunals—as opposed to leasehold valuation tribunals are to be brought within the scope of the property tribunal. For example, if by some remarkable parliamentary arithmetic the Minister’s party’s policy and my party’s policy on a mansion tax were to be carried tonight presumably there would be some sort of valuation system required. Even without that there may at some point be a valuation of domestic properties in particular.
There is a system for dealing with commercial properties and business rates with a cumbersome appeal mechanism. Is it envisaged that the property tribunal will take those issues into account? I hope that it might. The current procedure, particularly on the commercial property side, is leading to inordinate delays going back nearly a decade for determination. If it were to be brought within the scope of this new tribunal, I hope that it is a matter that could be dealt with, and a better service could be offered to the potential taxpayer and those organisations, notably local authorities, that clearly will have an increased interest in the local business rates yield of those properties. Perhaps the Minister could indicate, if not now then subsequently, whether this is to be brought within the scope of the new tribunal, either now, or possibly in the future.
With that said we do not object in principle to the proposal. It makes sense to bring things together. I hope that, subject to the observations made by me and the noble Baroness, we can approve these orders and look to a more efficient system applying, drawing as it will on a range of expertise. It is important that that range is reflected adequately in the appointments made to the new tribunal; and that should assist materially in the delivery of a better service to those who seek its decisions.
Lord McNally
My Lords, I thank the noble Baroness, Lady Gardner, and the noble Lord, Lord Beecham, for their interventions. As I mentioned in my opening remarks these orders almost complete the work set out by the Leggatt report. In spite of the points raised by the noble Baroness most people agree that the creation of a Property Chamber is a positive step that will bring benefits to users and consistency in this area of the law. Nevertheless, the questions raised are pertinent. As the noble Baroness, Lady Gardner, has acknowledged, I have a wonderful team behind me, which I hope has been taking note of her comments. She is probably right that at some stage there will be a strong case for a consolidated housing Act. When that will find its way into the parliamentary timetable, I do not know. However, the points that she raised illustrate the fact that we are talking about an area that cuts across a number of departments and pieces of legislation. Nevertheless, I hope these measures illustrate that we have made progress in terms of consistency and efficiency.
Lord Beecham
On that point, the Explanatory Memorandum talks about the right of appeal going wider than a point of law. I appreciate that it may apply to a point of law, but what if the matter goes wider than that? On the face of it, the right of appeal does not appear to be available. I am not asking for a reply now.
Lord McNally
I had better not guess. I would assume that it is not available but I will write to clarify. On the specific issue of legal aid, we do not consider that changes to legal aid will increase inequality in this area. One of the fundamental principles of the legal aid reform has been to discourage unnecessary and adversarial litigation at public expense. Tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation or access to legal aid advice. While we recognise that clients find advice in preparation for a case useful, we do not consider that this is a matter for the group of clients who are generally likely to be vulnerable.
I appreciate the interventions of the two noble Lords who I know have long experience in this area. I know that my colleagues will have valued their interventions, and we will consider carefully the points that they have made. I return to my concluding remarks when moving and speaking to the orders; in putting these final pieces of the Leggatt reforms into place, we have a better and more efficient Tribunals Service that will be to the benefit of citizens.
Lord Beecham
Before the Minister concludes, while it may not be for this evening, I specifically mentioned the point about valuation tribunals. I leave aside the mansion tax element for the moment.
Lord McNally
I apologise. Transferring the Valuation Tribunal for England and the Valuation Tribunal Service into Her Majesty’s Courts and Tribunals Service remains part of our administrative justice and tribunals works programme. There is considerable support from the Senior President of Tribunals and the wider judiciary for this transfer. MoJ officials will continue to negotiate with colleagues in DCLG and the Cabinet Office to identify how best to transfer VTE in the most cost-effective way. The short answer to the noble Lord is: that is work in progress.
Transfer of Tribunal Functions Order 2013
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Lord McNally
That the Grand Committee do report to the House that it has considered the Transfer of Tribunal Functions Order 2013
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments
Justice: Legal Advice
Lord McNally Excerpts(11 years, 2 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, these matters were assessed as part of the impact assessments, which were published alongside the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Lord Bach
My Lords, I thank the Minister for his reply as far as it goes but I do not think it is very full on detail. It is now only 21 days until civil legal aid effectively disappears, affecting access to justice for perhaps hundreds of thousands of people every year. What do Her Majesty’s Government think will happen to the disabled person, for example, who wants to appeal his or her Atos decision, or the person who needs housing advice but cannot get it because the local Shelter housing advice centre has been forced to close, as today’s newspapers report? What are the Government’s contingency plans when unadvised and unrepresented clients flood courts and tribunals? No one can say the Government have not been warned, all the way from the very top of the legal system to small charities that are at breaking point. What will the Government do when it all goes wrong?
Lord McNally
My Lords, we are working on some of these issues. We are working with the judiciary to improve guidelines for people representing themselves in court. We are developing a new online information service to help people find out if they are eligible for legal aid or signpost them to other services. We are giving £65 million of funding to help not-for-profit social welfare advice providers to adapt and transition over the next two years. We are also encouraging innovations in the legal services market, such as the provision of lower-cost advice services to help people in resolving their problems.
Lord Naseby
My Lords, how can anybody make a useful assessment in such a short time as there is from now to the changes? Should we not recognise that great trouble has been taken over these proposed changes? In a very tight financial situation, has not the time come to see what happens and then, if necessary, make changes one way or the other?
Lord McNally
I thank my noble friend for that question. It is true that the noble Lord, Lord Bach, has made something of a cottage industry of—
Lord McNally
He continually talks about what is going to happen. As my noble friend has just said, let us see what happens. As I indicated, we are making a number of changes. Of course I understand that there are difficulties for organisations such as Shelter and the CAB. We have tried to give assistance in those adjustments. It is extremely difficult to give precise responses to predictions of catastrophes that may or may not happen. I can say to my noble friend that we will keep these matters under review. As noble Lords on those Benches will remember, on their instructions we inserted into LASPO a clause that allows review of the impact of the changes that we have made.
Baroness Butler-Sloss
My Lords, I will not ask the Minister about legal aid, but is he aware of the increased importance of law centres and citizens advice bureaux advising unrepresented litigants, of which there will be an enormously increased number come April? What are the Government going to do to help them advise unrepresented litigants?
Lord McNally
Yes, my Lords, I am aware of that, but one of the points I have made continually through this is that the CAB and the law centres will have to adjust to a situation where the amount they have at their disposal is a lot less, just as my department and local authorities have had to do. That is a fact of life. As I have said on a number of occasions, we are a lot poorer than we thought we were four years ago. Citizens Advice has been extremely successful in lobbying and, as I have indicated, we have made more funds available. For example, my right honourable friend the Lord Chancellor has announced today that we will be giving further aid to the CAB at the Royal Courts of Justice to help with the particular work it is doing in this area.
Baroness Hollis of Heigham
My Lords, in three weeks’ time the bedroom tax will kick in—and I use the phrase “kick in” advisedly. Some 660,000 families, two-thirds of them including someone with a disability, will lose between £14 and £25 a week from their benefit. Given that, despite the noble Lord’s answers, CABs are losing—locally, certainly—some 40% of their funding because the Lord Chancellor’s money has dried up, where does he expect those 660,000 families to go for advice?
Lord McNally
The Opposition continue to preach gloom and doom about this. They will be entitled to bring to our notice how these impacts take place, but we have put a number of measures in place to try to deal with this new situation. We have put on a new online information service, we have given Citizens Advice and other advice centres transitional money and will continue to do so, and we are looking for innovations in legal services from other parts of the legal profession. We will see what happens.
European Convention on Human Rights
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Lord Clinton-Davis
My Lords, as the only male to have the temerity to be on the list today, I beg leave to ask the Question standing in my name on the Order Paper.
The Minister of State, Ministry of Justice (Lord McNally)
I am not going there, my Lords.
The Answer to the Question is no.
Lord Clinton-Davis
Did not the Home Secretary argue recently that the next Tory election manifesto should include a pledge to withdraw from the European Convention on Human Rights, thus reflecting the views of many Conservative MPs? Was that not described by the former Justice Secretary as “laughable and childlike”? Does not this division on a serious issue of policy show evidence of a hopeless split in the Conservative-led Government today?
Lord McNally
My Lords, I speak at this Dispatch Box for the coalition Government and the coalition Government’s policy on the European Convention on Human Rights is very clear. The noble Lord asked a specific question, “Is it our policy to withdraw?”, and I gave him a specific Answer: “The Answer is no”.
Lord Pannick
My Lords, do the Government recognise the link between this Question and the previous three in that the European Court of Human Rights has played a major role over the past 40 or so years in combating arbitrary discrimination on grounds of sex and race and other invidious grounds?
Lord McNally
My Lords, I find that a very helpful contribution. When the question, “Are you in favour of the European Convention on Human Rights?” is asked, certain people will see the word Europe and their eyes will start spinning round. As the noble Lord has pointed out, however, if you ask people, “Do you want built into law protection against the power of the state?”, in the way that he has just illustrated, they will invariably say, “Yes, please”.
Lord Dholakia
My Lords, I thank my noble friend for his clear and concise Answer to the noble Lord, Lord Clinton-Davis. Does he accept that Britain has an enviable record in promoting human rights and the rule of law throughout the world? What sort of response does he think he would get from people like Mugabe if we were to withdraw at this stage from the provisions of human rights legislation in this country?
Lord McNally
My noble friend asks a helpful question in putting this matter into perspective. My right honourable friend the Foreign Secretary has quite rightly made human rights, and Britain’s championing of human rights, part of his soft diplomacy strategy. It has been greatly to his credit and to the credit of the United Kingdom. It is important that we have a record that we can be proud of when we look at other regimes and criticise them about their human rights record.
Lord Tomlinson
The Minister gave an unequivocal Answer to the Question about withdrawal. However, can he be equally unequivocal about any plans to dilute the application of the European Convention on Human Rights to things where there is a conflict between the judgment of the court in Strasbourg and the view of a Government in the House of Commons?
Lord McNally
My Lords, I think that “dilute” is the wrong word. As the noble and learned Lord, Lord Neuberger, pointed out in his interview the other day, the relationship between our Supreme Court and the Strasbourg court is a healthy one of learning from each other and looking at each other’s jurisprudence as it develops. What we have been doing, and one of the proudest things I have been involved in as a Minister, was the Brighton conference on the workings of the court which looked at how we can build in a subsidiarity to take notice of the importance of national supreme courts while still retaining the strength and the moral authority of the European Convention on Human Rights.
Lord Faulks
My Lords, whether human rights are best protected by the Supreme Court, by Parliament or by Strasbourg, all noble Lords are anxious to protect them. However, even human rights have a cost. Public authorities are spending a great deal of money trying to make their policies compliant with the convention—rather like with health and safety—when the Strasbourg jurisprudence is extremely uncertain. The diminishing pot of legal aid is being spent on often unmeritorious cases about human rights, rather than on far more meritorious cases. I was one of the commissioners, and we were not allowed to consider questions of cost. I ask the Minister whether the Government, in the whole human rights debate, could tell us how much human rights is costing.
Lord McNally
I am not able to put a cost to human rights any more than to anything else. I see in government—and I suppose that we have a lot of experience of local government in this House—how agents of the state, as the noble Lord said, when making decisions have in the back of their mind that they have to clear certain hurdles about respect for the individual citizen. To me, this is a prize beyond cost.
Lord Beecham
Can the Minister match his welcome, unequivocal statement that there is no intention to withdraw from the European Convention on Human Rights on the question of repeal of the Human Rights Act? Will he confirm that the Government have no intention to seek to repeal the Act?
Lord McNally
Both publicly and privately, I sense that there is no majority in this Parliament in favour of repeal of the Human Rights Act. If an individual party at the next election wants to put repeal in its manifesto, that is its privilege and right, and it will have to take that to the hustings. It will not be in the manifesto of the Liberal Democrats.