Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 11th March 2014 Lords Chamber

[Lord McNally (LD)]

My Lords, first I declare an interest as chairman designate of the Youth Justice Board.

I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment tabled by the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.

I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.

I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.

I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity radically to reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.

It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under-12-months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.

That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.

The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.

I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.

I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.

[Lord Beecham (Lab)]

My Lords,

“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[Official Report, 17/4/07; col. 126.]

Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.

Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,

“about more centralised Government control over offender management … a recipe for disaster”.—[Official Report, Commons, 28/2/07; col. 1027.]

A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.

The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.

The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:

“If, at some future point, any Government were to decide that the time was right to open up that area of work”—

that is, offender management—

“they would have to make the case to Parliament, and Parliament would have the final say”.

He went on to describe it as a,

“double lock meaning that any movement after that will require a vote of both Houses”—[Official Report, Commons, 28/2/07; col. 1024.]

That is something that the present Government have been at pains to avoid.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord McNally and Lord Beecham

Wednesday 11th December 2013 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I rise to move the amendment in the name of my noble friend Lord Ponsonby, who cannot be in his place tonight. I shall be uncharacteristically brief. My noble friend draws the attention of the Committee, and indeed mine, to an anomaly in the present situation on victim surcharge orders. The payment may be ordered to be made by the parents of a young offender who are themselves the victims of a crime. That situation cannot possibly have been envisaged originally, but it appears to be the case and there seems to be no court discretion to avoid imposing what many of your Lordships would feel is a ridiculous outcome. The noble Lord may not be able to accept the amendment tonight, but I hope that he will look at it, as it seems to be anomalous and ought to be corrected.

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

My Lords, let me confirm at once that the noble Lord, Lord Beecham, has been uncharacteristically brief. I am sorry that the noble Lord, Lord Ponsonby, was unable to move his amendment because I know of his deep and continuing concern on these matters.

The Government are determined to provide the best support for victims of crime, which must be properly funded, but increasingly by offenders rather than taxpayers. In 2010-11, offenders contributed less than £1 in every £6 of funding that supports victims’ services. We intend to raise up to an additional £50 million from offenders to pay for services to support victims of crime. That is why we brought forward reforms to the victim surcharge last year, following public consultation, to ensure that all offenders bear a greater proportion of the cost of victims’ services. Proceeds from the surcharge are ring-fenced to fund support services for victims and witnesses. From October 2012, the victim surcharge for adult offenders was increased when ordered with a fine and extended to a wider range of in-court disposals such as conditional discharges, community sentences and custodial sentences. Similar provision was made for juvenile offenders who even before the changes made in 2012 were required to pay the surcharge when sentenced to a fine.

A key point of the victim surcharge is that all offenders, including juveniles, take responsibility for their offending behaviour and make a contribution towards funding victims’ services. Juveniles have therefore always been within its scope and I do not believe that it would be right to introduce discretion to exempt them. Having said that, I recognise the concerns of the noble Lord about the practicalities. When the offender is a juvenile, Section 137 of the Power of Criminal Courts (Sentencing) Act 2000 provides that the parent or guardian might become liable to pay a financial order made by the court. There may, therefore, be circumstances where the parent or guardian of a juvenile becomes liable to pay the victim surcharge when they have been the victim of the offence. We recognise the issue that such cases raise.

Let me reassure the noble Lord that the court does have the discretion not to order the parent or guardian to pay the surcharge if, having regard to the circumstances of the case, it considers that it would be unreasonable to do so. While the court would still need to order the surcharge in respect of the juvenile, there are a number of options open to it when it comes to payment. In this vein, the Justices’ Clerks’ Society issued a circular to its members in June this year outlining some of these approaches. These could include inquiring as to any income the offender may be receiving, particularly if they are older juveniles, in which case responsibility for paying the surcharge would fall directly to the young person. Additionally, in exceptional circumstances, the court has the power to defer payment of the surcharge until such time as it considers the offender would be able to pay it, again making responsibility for paying the surcharge the offender’s rather than that of his or her parents.

We believe that it is right that all offenders, including those aged under 18, should take responsibility and make greater reparation towards the cost of victim support services as a result of their actions. It is therefore appropriate that the surcharge should continue to be ordered when a court deals with an individual, whether as an adult or a juvenile. I hope that I have been able to reassure the noble Lord on the points he raised and that he will be content to withdraw his amendment.

[Lord Beecham]

My Lords, I am grateful for what I might best describe as an uncharacteristically helpful and informative response from the noble Lord, which I undertake to convey to my noble friend. We are, of course, entirely with the noble Lord and the Government in wanting to ensure that victims are compensated, especially by those who wrong them. He has adequately explained the situation and my noble friend’s fears seem to be unfounded. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall also speak to Amendments 95AB, 95BA and 95D in relation to the issue of court and tribunal fees. At Second Reading I described the Bill as not so much a curate’s egg as a curate’s omelette, comprising as it does so many ingredients, both good and bad, mixed up together. It is perhaps fitting that the Committee should end with a debate on a clause which impels me to produce another culinary analogy, for this clause and the process which has informed it can best be described as half-baked.

It is perfectly reasonable to update the fees for proceedings in courts and tribunals to keep pace with inflation and, in appropriate cases, to seek full-cost recovery, provided there is a reasonable and effective scheme for the remission of fees, in whole or in part, for those of modest means or less. Equally, I have few qualms about fees in cases such as those in the commercial court which the Government are anxious to promote internationally as a forum of choice, but the approach of the Government to this clause has been cavalier in the extreme.

On 4 December the Minister wrote to me to say that the Government had launched a consultation on the provisions of Clause 155, as announced the previous day, that is to say four working days before the clause comes to be considered by this House. Had progress been quicker on earlier clauses, we would have reached this clause on the very day that the Minister’s letter reached me. The consultation, incidentally, is to last seven weeks, including the Christmas and new year period. It will end on 21 January, by which time we will presumably have reached Report, if not concluded it, and there will be little or probably no time at all for the Government to give their response before the Bill’s final stage is reached.

That is not all. Impact assessments for these proposals published on 2 December say next to nothing about the impact on claimants applying to tribunals or to the courts, as opposed to the amounts the Government hope to rake in from increased fees. The Government’s attitude to consultation is underlined by paragraph 20 of the current consultation paper which refers to an earlier consultation, CP15/2011, Fees in the High Court and Court of Appeal Civil Division, to which, the consultation paper records,

“the Government has not yet responded”

after some two years, and which are, the consultation paper says, “superseded”—without, I may say, any explanation—by the current proposals.

The saga does not end there—perhaps I should say does not start there—for the Government launched yet another consultation last April, this time on fee remissions for courts and tribunals, with a four-week period for responses, and published their response, conveniently, no doubt, for them on 9 September, when Parliament was in recess. Interestingly, that document introduced a disposable capital test and airily dismissed concerns that this might have a deterrent effect on claimants. There is, incidentally, currently concern about an apparently significant drop in employment tribunal claims following the hotly contested introduction of fees, which were widely regarded as too high. Perhaps the Minister would save me the trouble of tabling a Question by agreeing to write to me in the new year with details of the number of claims before and after the imposition of charges. It is, after all, an analogous situation to that which this clause deals with.

The Government’s latest consultation paper refers to interviews and research, both of which are said to have been the subject of a full report published alongside the consultation, but for which no references are given. Painting, as ever, with a broad brush, the Government say that they believe,

“that all those who issue a court case benefit equally from the existence of the civil justice system as a whole and should share in contributing towards its indirect costs”,

and, therefore, they divide the indirect costs of the system between all cases that are issued. It is not clear to me whether the apportionment applies equally to all cases, or whether it is in some way proportionate to the amount claimed. On the face of it, this looks very like the application of the principle of the poll tax to the cost of making a claim to a court or tribunal.

Paragraph 60 of the consultation proposes to combine the fees for issue and allocation to a track—the small claims track, fast track or multi-track—without any clear explanation of the rationale. Paragraph 63 acknowledges that the hearing fees for the higher track cases are higher than the average cost of such, but it does not propose to adjust them, thereby importing the concept of more than full-cost recovery by the back door. In divorce cases, while the Government say, at paragraph 71, that they will maintain the issue fee at £410, already above the actual cost price of £270, they will impose an extra charge of £300 to cover the cost of the remainder of the proceedings. Given that, in many cases these will be a mere formality, this looks suspiciously like another example of more than full-cost recovery, though not, of course, for the complex cases where there are major issues as to income and property, where such charges might be thought to be not unreasonable.

Ominously, the Government propose changes to the fees in money claims, including, no doubt at the behest, yet again, of their friends in the insurance industry, in personal injury cases. They go so far as to say that their proposals, if applied in their entirety, would lead to reduced fees on claims of around £10,000 or less but, typically, they will not be changing those fees.

The Committee will understand that there are many questions about these proposals, but there is an overriding question about the abuse of the legislative process which, not for the first time, is being perpetrated by this Government. I acknowledge and welcome the concessions made in the Government’s amendments as far as they go. They will ensure that any increase in fees other than inflation-related increases will have to be approved by affirmative resolution, and that is a welcome improvement. But will the Government consider the amendments I have tabled, which seek to ensure that access to justice is a prime consideration before setting the size of the fee increases, and that the remission arrangements are properly scrutinised and agreed? Will they revise the existing remission arrangements in the light of the proposed major changes, and will they review the proposals to take disposable capital into account?

Given the shambles of the process thus far, I have to say that on Report the Opposition may well press for a sunrise clause along the lines of Amendment 95D to ensure that there is proper parliamentary scrutiny of the complete package when its final contents are developed. As I say, that is unlikely to be the case before this Bill receives its Third Reading.

In addition, in the mean time it will be helpful to know whether, in the indefinite age of austerity that the Chancellor has decreed for public services, the principle of full-cost recovery, and especially of more than full-cost recovery, will be extended to other services such as further and higher education, prescription charges or other parts of the health service. By what logic, one wonders, would the Government differentiate between some of the proposals they are making in this Bill, incorporating more than full-cost recovery for access to justice, and those or other public services? I beg to move.

[Lord McNally]

My Lords, I shall not try to follow the noble Lord, Lord Beecham, down his culinary route. One of the pleasures of responding to the noble Lord is that it is almost like doing a school exam. So many questions are fired at you in quick succession. If I do not cover them all in this reply, I will carefully read what he has said, note the question marks that Hansard inserts and try to send suitable replies, including on the point he made in opening about the figures for claims at employment tribunals after the introduction of charges.

Perhaps I may deal first with the two government amendments in the group, namely, Amendments 95B and 95C. These give effect to the recommendation made by the Delegated Powers and Regulatory Reform Committee relating to the power to charge enhanced court fees. Clause 155 currently provides that, when the power to set a fee or fees at an enhanced level is used for the first time, the relevant statutory instrument should be subject to the affirmative resolution procedure, with any subsequent changes to the fee or fees being subject to the negative procedure. The Government’s intention was that the principle of charging an enhanced fee should be subject to a full debate in Parliament, after which the negative procedure would provide the necessary level of parliamentary oversight for any subsequent changes to the fee.

However, the Delegated Powers and Regulatory Reform Committee was concerned that this would provide the Lord Chancellor with a very wide discretion to set the level of fees. Although the legislation requires the Lord Chancellor to have regard to the financial position of the courts and tribunals and to the competitiveness of the legal services market when setting fees, the committee felt it was possible that, in future, very different considerations might apply and that these should be taken into account. The committee therefore recommended that the power to set an enhanced fee should be subject to the affirmative procedure unless the amendment is being made solely to reflect the change in the value of money. The Government agree that this change would be appropriate and, accordingly, Amendments 95B and 95C will implement this recommendation.

I turn now to the amendments in the name of the noble Lord, Lord Beecham. Amendments 95AA and 95AB seek to require the Lord Chancellor to have regard to the principle of “access to justice” when setting fees. I can wholeheartedly agree with the noble Lord that this is an important consideration. However, the Lord Chancellor is already under a duty to do exactly this when setting fees under Section 92 of the Courts Act 2003. Subsection (3) of that section provides that the Lord Chancellor,

“must have regard to the principle that access to the courts must not be denied”.

Amendment 95BA seeks to make the remission scheme subject to the affirmative resolution procedure. As noble Lords will be aware, there is already a remission scheme in place. Indeed, the scheme has been in place for a number of years, but was updated and revised as recently as 7 October 2013 when the Courts and Tribunals Fee Remissions Order 2013 came into force. It is the Government’s intention that the existing remission scheme will continue to apply in all cases where enhanced fees would be introduced.

The current scheme provides for certain court and tribunal fees to be remitted in whole or in part where litigants meet certain criteria based on their disposable capital and gross monthly income. The existing scheme is made under the same order-making powers as apply to the setting of fees, for example, Section 92 of the Courts Act 2003, which relates to fees payable in respect of proceedings in the senior courts, county courts and magistrates’ courts. As the remission scheme relies on the same order-making powers as the statutory instruments prescribing court and tribunal fees, they are subject to the same level of parliamentary procedure—namely, the negative procedure. In its seventh report of Session 2002-03, the Delegated Powers and Regulatory Reform Committee welcomed a government amendment to make the order-making power in what is now Section 92 of the Courts Act 2003 subject to the negative procedure. Given that previous endorsement by the committee, and the fact that the current arrangements have been in place for some years, I see no good reason why we should now alter the level of parliamentary scrutiny.

Finally, Amendment 95D would require the Lord Chancellor to report to Parliament on the outcome of the public consultation on these proposals and to obtain approval for its response. As the noble Lord indicated, the Government on 3 December set out their detailed proposals for using the power to set enhanced fees in the consultation paper, Court Fees: Proposals for reform. This seeks views on a series of proposals for charging enhanced fees, including for money claims, in commercial proceedings and for divorce, alongside proposals for reducing the current deficit of £100 million in the cost of running the Courts and Tribunals Service. The consultation closes on 21 January. In the normal way, we will publish a response to that consultation in due course and Parliament will have an opportunity to consider it when we lay a draft order under Clause 155. I therefore take Amendment 95D as a probing amendment rather than an attempt to enshrine in statute the normal process of reporting on the outcome of a consultation.

Defamation (Operators of Websites) Regulations 2013

Debate between Lord McNally and Lord Beecham

Tuesday 19th November 2013 Grand Committee

[Lord Beecham (Lab)]

My Lords, I pay tribute to the noble Lord, Lord Lester, who was instrumental in securing reform of defamation law and has campaigned long and hard for that. I also join him in thanking the Minister for walking us through this rather tangled undergrowth of regulations. I am bound to say that the Minister reminds me less of Moses bringing down the tablets than perhaps Daniel exercising judgment. I should like to think that I was descended from one or other; I may be remotely connected but I do not think that I am descended from either of them.

After 45 years as a solicitor, I know something about the law of defamation, although I would not claim to be an expert. But when it comes to the world of computers, information technology and social media, I confess to being an utter novice. At the risk of being labelled a Marxist by the right-wing press or Conservative Central Office, I recall some words of Marx—Groucho, I hasten to add, and not Karl. In one of his films, which might have been “A Night at the Opera” but I would not swear to that, he is seen poring over a map and declares that a child of five could understand the map. He continues: “Bring me a child of five”. I am tempted to make the same request when confronted by matters of the kind encompassed by these regulations.

We share the Government’s objective to protect freedom of speech, in which the internet and social media can and do play such an important part. We welcome the thrust of the regulations, although perhaps it would have been better if guidance on Section 5 of the Defamation Act had been available in draft form when the legislation was under consideration on its journey through Parliament. The regulations appear to offer reasonable protection to the operators of websites but there are perhaps questions about the extent to which they adequately protect those who claim to be defamed by material appearing on those sites. Thus, the website operator will have a defence, as we have heard, to an action if it can show that it did not post the material in question unless the claimant can show that he or she did not have sufficient information to bring legal proceedings against the poster of the statement and that the operator failed to comply with a notice requiring it to identify the poster requested by the complainant. Of course, this assumes that the claimant has the means to pursue that legal remedy, a somewhat questionable proposition in the light of the matter of costs. We are not now dealing with conventional media stories with a limited shelf life and relatively limited audience, although perhaps quite a wide reach, but with material with a potentially unlimited shelf life—unless, like the Conservative Party’s once publicly available material, it can be conveniently hidden—and a consequently higher risk of damage to a complainant’s reputation.

Part 4 of the guidance explains that the operator will have a defence when the complainant has sufficient information to bring an action against a poster but, again, that relies on the claimant having the means to do so—and what if the poster is outside the jurisdiction? It is all very well for the guidance to proclaim that disputes should be resolved directly between the complainant and the poster but, in the event that the poster does not wish a statement to be removed and his details to be released to the complainant, the latter will have to obtain a court order to obtain the details, again raising the issue of cost. Would it not have been better to have established for these purposes a less formal and less expensive mechanism, in which a panel, perhaps financed by the industry itself, could determine whether the information as to identity should be released and whether the post should be removed, leaving the question of financial compensation to be determined by the courts?

On a further point, what is the Government’s response to the observation of the Secondary Legislation Scrutiny Committee to the need for the guidance to define,

“how terms such as ‘receipt’ are interpreted in this legislation”?

The Explanatory Memorandum to the regulations sets out the response to consultation and lays down welcome tighter timetables for action by the operator and poster following a notice of complaint. However, somewhat disappointingly, it requires further notices to be given when the material has been the subject of two or more complaints rather than immediately. Moreover, paragraph 9 of the Schedule to the regulations makes it clear that even the more limited protection afforded by this provision is available only when the same poster is involved. If a different person posts the same material, the whole process must be gone through again by the defamed claimant—and the material can be identical.

My honourable friend Dan Jarvis, speaking for the Opposition yesterday in the debate in the Commons, asked the Government whether they would keep the new process under early review, given the speed at which the world moves. Is the Minister able to confirm that that is the Government’s intention and that such a review would be initiated within a year of the regulations taking effect and be kept under regular review thereafter? Will they look again at suggestions made in Committee during debates on the Defamation Bill that would require the operator to post a notice of complaint, should one be received, alongside the alleged defamatory material so that those who view the material can, at least, be alerted to the fact that the matter is disputed?

Having said that, we support the regulations. As the noble Lord, Lord Lester, indicated, things change, and it is necessary to keep these matters under review. Perhaps some of the points that I have raised could be taken on board at the time of the first review and in the light of the experience that will develop over the next few months or so.

[Lord McNally]

My Lords, I am grateful for the contributions of both noble Lords. As the noble Lord, Lord Beecham, said, the noble Lord, Lord Lester, is very much the godfather of this Act, and I have benefited from his wisdom over the whole three years. As he says, the end is nigh, in that the Act will come into force on 1 January 2014, including these regulations. He points to the fact that although the Act itself will, I hope, give the kind of balance between freedom and the rights of the defamed which will stand the test of time, as he and the noble Lord, Lord Beecham, have said, legislators will always have the problem of how fast technology moves. I am not one of those who believe that new communications technologies should be beyond governance, but it is going to be a continuing challenge. The noble Lord rightly points to areas such as copyright, privacy and cybercrime, which we will continue to grapple with. But we set an example by being flexible and, as both noble Lords indicated, by underpinning free speech as far as we can and avoiding overregulation.

The noble Lord, Lord Beecham, always starts with a statement of modesty by saying that he does not understand these things and that they are all so complex. He then deftly skips through the particular regulations posing me difficult questions. I will try to address some of them.

Anyone listening to this debate will know that this is a complex matter, but it is complex because we have to get the balance right between the poster, the internet provider and the complainant. We do not want to overburden the provider with regulations or drag him into court cases. This is an attempt to ensure that the complainant and the poster are brought face to face, as it were, as easily as possible.

We are taking steps to introduce a system of cost protection for defamation and privacy and have recently consulted on that. We are currently considering the views expressed with the intention of introducing that as early as possible next year. I am grateful to the Master of the Rolls for the advice that he has given me on that.

On monitoring, it is always tempting, particularly for the Opposition, to ask for a review within a year. We obviously need an opportunity to see how these matters will settle down. Parliament has put in place formal reviews within a period of three to five years of royal assent. This Act will be subject to the usual arrangements of parliamentary scrutiny. However, the noble Lord, Lord Beecham, is quite right. We will continue to informally monitor the operation of these regulations and we will certainly not hesitate to draw the attention of Parliament to them if they do not seem to function as we hope they will.

On not releasing details and putting complainants to the cost of a Norwich Pharmacal order, there may be a good reason why the poster is unwilling to release the contact details. On balance, we consider that it is right for a court order to be obtained in these circumstances. However, there may also be cases where, through the operation of the process set out in regulations, a poster agrees to release contact details to the complainant, avoiding the necessity to obtain a court order.

The other question was on the matter of the definition of “received” in the regulations. While ultimately it will be for the court to interpret the regulations, we consider that the word “received” should be given its natural meaning and that therefore the notice of complaint would be “received” at the point when it is delivered. That is when it has arrived at the operator’s machine. We will make that view clearer in the guidance accompanying the regulations.

As both noble Lords indicated, the Act has been broadly welcomed by those who have campaigned for it. We believe that it will defend free speech while giving those who are defamed a reasonable opportunity for redress, and with some protection from the costs of doing so. Section 5 of the Act, and these regulations, represent an important part of the package of measures designed to reform the law of defamation. The noble Lord, Lord Lester, is right: given the way the world is moving from the printed page to electronic communications, it would have ducked the issue had we not tried to address the matter in the Act. In so doing, I think we strike a fair balance between freedom of expression and the protection of reputation, as I said in my opening remarks. The regulations strike a fair balance between the various interests involved, and their approval will enable the Act as a whole to be brought into force on a timely basis at the end of this year. I hope that noble Lords will agree that this is a proportionate and sensible measure.

Judicial Appointments (Amendment) Order 2013

Debate between Lord McNally and Lord Beecham

Tuesday 19th November 2013 Grand Committee

[Lord Lester of Herne Hill (LD)]

My Lords, I have always been in favour of widening the pool, as far as one can, for judicial appointments, provided that there are adequate safeguards. I am satisfied that there are adequate safeguards and I think that it is in the public interest if the pool of people can be widened in the way which my noble friend described.

[Lord Beecham (Lab)]

My Lords, I served my articles to a solicitor who was a coroner, and subsequently went into partnership with him. I may regale the Minister with a couple of stories from the coroners’ courts after the sitting. There are certainly some interesting side-lights that he might enjoy. I join the noble Lord, Lord Lester, in congratulating the Government on widening the range of possible appointees. There is no earthly reason why a competent and experienced legal executive should not exercise the coronal functions. In passing, I am also glad that we still have a chief coroner, notwithstanding the Government’s early aspirations in that regard. That should also lend confidence to the legal profession generally that the standards will be maintained.

It has to be said that, from time to time, one hears criticisms of coroners, as one does of other members holding judicial appointments in our legal system. Some of the new appointees may likewise incur some questioning and criticism, but that does not vitiate the thrust of the Government’s policy, which is to widen the range of potential applicants and encourage those who take that particular form of legal career to progress their careers and make their contribution to society.

We are glad to see the order and congratulate the Government on introducing it.

[Lord McNally]

My Lords, I am grateful to both noble Lords. I suspect that the clue to the unity is the fact that we were using legislation passed by the previous Government, including the reforms to the coroners. The chief coroner is of course very much the child of this House in the way that it advises and revises. It advised us to keep a chief coroner and, being a wise Government, we accepted that advice. I have benefited from it in bringing forward the order.

[Lord Beecham]

I thought for a moment that the noble Lord was implying that some of us were going to need the services of a coroner before very long.

[Lord McNally]

Ultimately, we all will.

The noble Lord said that he had some stories about coroners. Along the rocky road that I have travelled, I was political adviser to the Prime Minister, James Callaghan, whose personal physician was Monty Levine. Monty Levine was coroner in Westminster and Southwark for about 20 years. I think he was a doctor who qualified as a coroner. In the order and what is in the legislation, we are bringing consistency, but also an opportunity for diversity, both of which are entirely welcome. I am very grateful for the support from the noble Lords, Lord Lester and Lord Beecham, and I commend the draft order to the House.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

Debate between Lord McNally and Lord Beecham

Tuesday 19th November 2013 Grand Committee

[Lord Lester of Herne Hill (LD)]

My Lords, this course is important and sensitive. I would like to give a little background to how SIAC came to be set up and involved in this way in this procedure. It happened because of a case called Chahal. Mr Chahal was a Sikh and suspected terrorist being sent back to India. Under the old three wise men procedure there was no proper judicial process to decide whether he should be sent back, so he brought a case in Strasbourg. The problem was how you reconcile justice and the needs of national security. In the Chahal case, the various NGOs that intervened mentioned that there was a Canadian process that allowed national security and justice to be reconciled by a procedure rather similar to what the House is now considering.

I then did two cases from the bad old days, one in which the then Secretary of State prevented women in the Royal Ulster Constabulary part-time reserve having their sex discrimination cases determined in Belfast on the basis that it involved national security and that in no circumstances could his certificate be set aside. The second one involved alleged Catholic discrimination in Northern Ireland, where another Secretary of State again sought to prevent the applicants having the merits of their cases reviewed.

The SIAC procedure of 1997 was Parliament’s decision at the time to apply something like the Canadian procedure to enable national security and justice to be properly weighed. I have one experience of SIAC from the distant past, when I represented a group of suspected terrorists, who later won their case—not through me—in Luxembourg. My experience then was very unhappy. I and they did not consider that the way it was dealt with by SIAC felt fair. But that was a long time ago and I am sure that lessons were learnt a long time ago. For my part, we are now concerned with not the controversial matters that plagued the House for so long when considering the Justice and Security Bill, but a perfectly sensible grafting on to the existing SIAC procedure of matters that clearly belong within SIAC under those procedures and nowhere else.

I recognise the compromises that are struck in these rules, one of which is where the Home Secretary—the Minister—decides to object to the disclosure of information to the claimant. My understanding is that there can then be a special advocate procedure to deal with that. That is a compromise that I reluctantly accept has to apply in this context. I hope, having said all that, that it provides a little more context to what we are talking about. For my part, I support the Motion before the Committee.

[Lord Beecham (Lab)]

Once again, there are three of us in this marriage, to quote a much more distinguished person.

I am grateful to the noble Lord, Lord Lester, for his long contribution to the evolution of the law in this area and the conduct of the debate. Of course, we spent a considerable time debating closed material procedures when we were engaged in a more recent piece of legislation. It is perhaps worth remembering that the procedures under SIAC are rather more stringent in terms of the criteria that a tribunal can apply, since the Justice and Security Act requirement is to protect matters of national security, but SIAC’s remit is wider. It has the potential of ruling out material that is contrary not only to the interests of national security but the international relations of the United Kingdom, the detection and prevention of crime or in any other circumstance where disclosure is likely to harm the public interest. That is a much wider range, but this is a rather separate case. We are not at the moment disputing that.

However, the Minister referred to consultation about the proposals. I make it clear that we are not opposing the proposals. He cited the special advocates, the Law Society, the Bar Council and the chairman of SIAC as having been consulted. He did not mention that the Home Office, the Treasury Solicitor, the security and intelligence agencies and the Foreign and Commonwealth Office were also consulted, which is perfectly proper. But can he say if anyone else was consulted? Were organisations concerned with representing people in this situation consulted? Were voluntary organisations such as Liberty or Justice for All consulted? Were any bodies or organisations working with those involved in immigration matters consulted, such as the association of immigration lawyers? It would be interesting to know whether the consultation was confined to those who might be expected to have few, if any, reservations about it as opposed to those who might want to raise other issues.

For my part, having had some communication from the association of immigration lawyers, there is one matter that I would be grateful for some elucidation about. There is a concern that the transitional provisions in the rules could allow a case currently progressing in the High Court as a judicial review to be hijacked and taken to the commission. I have no idea whether there is any substance in that fear. Will the Minister—perhaps not at this moment—clarify whether that is a possibility and, if it is a possibility, how likely it is and how many current cases might be caught? It would be a matter of concern if it is a possibility, although, of course, it may not be and I am perfectly content to await the Minister’s response on that.

Another possibility that has been raised is that perhaps some matters have been held back from being listed for hearing on a judicial review, if indeed it is possible that the problem might have arisen. Again, an assurance that that has not happened would be welcome. Having made all the points that I want to make, I support the order.

[Lord McNally]

I am grateful to my noble friend Lord Lester for his little historical background. He also hinted, as did the noble Lord, Lord Beecham, that every party which has had responsibility for these matters has agonised over that balance between the proper demands of justice and the need to protect national security. It is right that we agonise. I believe we do because we are of all political persuasions. This country is still a liberal democracy—with a small “l” and a small “d”—and liberal democracies agonise about how to get that balance right.

The noble Lord, Lord Beecham, asked for the list of other consultees and I am hopeful that I will be able to tell him that. As I mentioned in my opening remarks, around 60 cases currently are held in the High Court, which the Home Secretary intends to certify. My understanding is that those cases would then go to SIAC. If the full list of consultees has been passed to me, it has gone right past me, which would not be the first time.

[Lord Beecham]

Perhaps the Minister will write to me about that.

[Lord McNally]

I will write and put in the Library of the House the full list of consultees.

While I have been here today, the noble Lord, Lord Pearson of Rannoch, has been sitting in his place at the other end. I have to say that passing through my mind was the thought that when Talleyrand died, Metternich apparently said, “Now, what does he mean by this?”. I have been looking at my Order Paper wondering on which item of business the noble Lord would intervene; then I realised that his is the next business. So as regards any unworthy thoughts that he was going to intervene on any of my business, I am much relieved.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord McNally and Lord Beecham

Tuesday 12th November 2013 Lords Chamber

[Lord McNally]

It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.

A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.

The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.

It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.

Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.

Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.

I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.

Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.

The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.

I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.

[Lord Beecham]

I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

My Lords—

[Lord Beecham]

My Lords—

[Lord McNally]

I know that the noble Lord is under pressure.

[Lord Beecham]

I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.

[Lord McNally]

I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.

This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.

The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.

I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.

I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.

Probation Services: Privatisation

Debate between Lord McNally and Lord Beecham

Thursday 31st October 2013 Lords Chamber

[Lord McNally]

Any transformation programme is difficult, and keeping to a timetable is always challenging, but I do not believe that a six-month delay would promote better or more efficient work than is now being done. Of course we will keep these matters under review and check how progress is being made. There is a campaign in some quarters against the idea of these proposals but, in the main, we are having very constructive discussions with the trusts. I am confident that we will be able to keep to the tight but achievable timetable that we have set.

[Lord Beecham (Lab)]

Does the Minister think that the rushed changes to the probation service, before the House of Commons has even discussed the amendment passed by this House to the Offender Rehabilitation Bill requiring parliamentary approval for such changes, will prove less of an omnishambles than NHS reorganisation, the 111 helpline, universal credit, personal independence payments, legal aid or the sale of Royal Mail?

Inheritance and Trustees’ Powers Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 22nd October 2013 Grand Committee

[Lord McNally]

I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.

Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.

My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.

I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.

I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.

[Lord Beecham]

I have done that so often.

Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013

Debate between Lord McNally and Lord Beecham

Tuesday 15th October 2013 Grand Committee

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

My Lords, the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013 amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April this year. The draft regulations make provision in relation to requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport to facilitate a determination for the purpose of legal aid that a relevant individual’s financial resources include an interest in a motor vehicle. This amendment is intended to support the Criminal Legal Aid (Motor Vehicle Orders) Regulations 2013 that came into force on 30 July this year. These provide for mechanisms of enforcement in relation to unpaid contributions towards the cost of criminal legal aid in the Crown Court imposed under the Criminal Legal Aid (Contribution Orders) Regulations 2013.

The motor vehicle orders regulations authorise the magistrates’ court to order the clamping and sale, through motor vehicle orders, of an individual’s vehicle when the contribution required to be paid by the individual towards their Crown Court legal aid costs is overdue. Before granting a motor vehicle order, the court must be satisfied that the defendant owns the vehicle, and it is for this purpose that the amendment before the Committee is significant. Requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport, in practice the DVLA, in accordance with the amendments made by these draft regulations will enable the director to confirm whether an individual is the registered keeper of a particular vehicle. If the individual is the registered keeper of that vehicle, the director will also be able to request any particulars contained in the register in relation to that vehicle. An applicant for legal aid is required to indicate in their application whether they, alone or with anyone else, own a motor vehicle, and if so, the registered vehicle number of that vehicle. The individual’s statement that they own a vehicle, taken together with the DVLA’s confirmation that the individual is the registered keeper of the vehicle, will be a way of evidencing that the individual owns the vehicle for the purposes of the motor vehicle orders regulations.

These draft regulations also add the Armed Forces Independence Payment to the list of prescribed benefits in the schedule to the 2013 regulations. If an individual is in receipt of a prescribed benefit, the director may request information about the benefit from various other government departments, including the amount the individual is receiving. Due to the timing of the secondary legislation that created the AFIP, it could not be included in the schedule when the 2013 regulations were first made; it was always intended to add the AFIP to the schedule at the earliest opportunity.

Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it and that those who can afford to contribute to the cost of their legal representation are made to do so. I should stress that the proposed data sharing arrangements with the DVLA will in no way impact on defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on court users. As was the case with the original 2013 regulations, nothing in these regulations dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality.

These draft regulations support the Government’s proposals to make the legal aid system operate more efficiently, and to improve confidence in the system as a whole by ensuring that those who are entitled to help receive that help while those who can afford to pay, do so. I beg to move.

[Lord Beecham (Lab)]

My Lords, I begin by welcoming the noble Lord, Lord Bates, to the Front Bench. I am not sure that he has a relevant interest—to quote the appropriate phrase, perhaps—in these regulations, but it is good to see another Peer from the north-east occupying a position of some influence, I hope, with this Government.

The regulations refer to an “interest” in a motor vehicle. That can take more than one form and need not necessarily be ownership. Presumably, somebody might be the keeper of a vehicle which is rented or hired, or indeed owned by somebody else, and I am not quite clear how the regulations would apply in those circumstances. It is also interesting that the explanatory notes refer to the fact that details of the scheme were to be published in an addendum to the consultation response alongside an updated impact assessment. I do not know whether that has been published and I confess that I have not been able to find an impact assessment. Will the noble Lord indicate what the potential impact is, for example, in terms of the number of vehicles that might be expected to be reported and, for that matter, the number of vehicles about which action might be taken, presumably in taking possession of those vehicles?

Will the noble Lord also indicate the approach that will be taken in relation to possible removal or disposal of such a vehicle and what criteria would be likely to be applied? For example, if someone, whatever his involvement in an offence might be, was dependent on having transport, for example, to work, would that be a material factor or would the process be directed simply at taking into account a financial recovery? Presumably, if a contribution was sought from somebody, he would be expected to dispose of any financial interest in the vehicle, which could conceivably cause difficulty. Is a process to be directed to that question? What other impact is anticipated in relation to the application of the order?

In relation to the other part of the regulations, given the concern about members of the Armed Forces, I find it a little surprising that a benefit specifically directed to, presumably, members of the Armed Forces who have suffered a disability, possibly in the course of their service, should be taken into account. Will the noble Lord inform your Lordships about the rationale for that? I appreciate that it might be regarded as analogous to the disability living allowance but one might have thought that, if a disability is incurred in the armed services, a rather different view might be taken. Will the noble Lord indicate the potential impact of this, in terms of the number of cases which it is envisaged might arise on an annual basis? Obviously, we are not going to take a point about these regulations, except to note that they seem to have been in force for some seven months before coming to this House for consideration. It does seem an inordinately long time after regulations have come into force to proceed with the process of parliamentary approval. None the less, we as an Opposition are not going to take any point against them as such.

[Lord McNally]

My Lords, I thank the noble Lord for that helpful intervention. On the point about publication, the impact assessment was published on 5 July 2013. On discretion, the primary legislation already puts in a number of safeguards. The court may make a clamping order only if it is satisfied that a defendant’s failure to pay the amount sought was due to wilful refusal or culpable neglect. The clamping order must not be made unless a defendant has an interest in the vehicle, and a clamp may not be fitted to a vehicle that displays a current disabled person’s badge. So safeguards are there. The court may grant an order only if the individual has an interest in the vehicle. If the individual shares a vehicle with their spouse or partner, this would be sufficient. However, we would not go after a vehicle which was the subject of a hire-purchase agreement, for example.

I appreciate the noble Lord’s probing. I was one of the initiators of this tightening of the regulations, because I had in my mind the idea of the drug-pusher who was kingpin of his estate and who seemed to be able almost to defy the law by driving around in a swanky car. It might at least send a message to those who saw him as a role model if his swanky car was taken off him. However, I understand that that needs to be carefully balanced against other matters in law—and I think that it is balanced.

On the Armed Forces matter, AFIP is a benefit for Armed Forces veterans to protect them from any possible financial detriment as a consequence of the replacement under the Welfare Reform Act 2012 of disability living allowance with personal independence payments from 8 April 2013. Like the DLA and PIP, AFIP is a benefit which is deducted from the gross income of an individual when their eligibility or liability to make a contribution towards the costs of legal aid made available under Part 1 of the Act is being calculated. It is therefore four-square with other benefits in that respect. With those assurances, I commend the regulations.

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

Debate between Lord McNally and Lord Beecham

Monday 22nd July 2013 Lords Chamber

[Lord Beecham]

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

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

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

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

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

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

“act independently to establish facts”.

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

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

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

a judgment with which I profoundly concur.

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

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

It concluded that,

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

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

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

set out in the Public Bodies Act,

“in respect of efficiency and effectiveness”.

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

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

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

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

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

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

He went on to say that,

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

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

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

about these latter issues.

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

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

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

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

“maximise the robustness of this body”,

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

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

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

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

although it may have judicial representatives upon it—

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

The council concedes that,

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

although not its role. The council points out that,

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

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

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

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

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

Can the Minister deny these serious charges?

I conclude with a final quotation from the council:

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

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

[Lord McNally]

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

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

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

Judicial Appointments Commission Regulations 2013

Debate between Lord McNally and Lord Beecham

Monday 22nd July 2013 Grand Committee

[Lord Beecham]

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

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

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

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

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

[Lord McNally]

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

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

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

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

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

Debate between Lord McNally and Lord Beecham

Monday 22nd July 2013 Grand Committee

[Lord Beecham]

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

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

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

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

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

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

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

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

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

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

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

[Lord McNally]

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

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

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

[Lord Beecham]

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

[Lord McNally]

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

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

Debate between Lord McNally and Lord Beecham

Monday 15th July 2013 Grand Committee

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

My Lords, that is enough radicalism for one afternoon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Beecham]

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

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

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

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

Coroners and Justice Act 2009 (Consequential Provisions) Order 2013

Debate between Lord McNally and Lord Beecham

Wednesday 10th July 2013 Grand Committee

[Lord Beecham]

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

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

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

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

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

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

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

[Lord McNally]

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

--- Later in debate ---

[Lord Beecham]

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

[Lord McNally]

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

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

Debate between Lord McNally and Lord Beecham

Monday 8th July 2013 Lords Chamber

[Lord McNally]

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

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

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

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

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

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

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

[Lord Beecham]

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

[Lord McNally]

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

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

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

Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 25th June 2013 Lords Chamber

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

My Lords, far from being tedious or boring, I found that an extremely interesting intervention, and I look forward to the reply of the noble Lord, Lord Ramsbotham. My noble friend is quite right to draw attention to the Offender Management Act 2007, because the plans that we have for the probation service are provided for on a legislative basis in that Act. The Bill before us is not, as we have fully acknowledged from the beginning, about the reorganisation of the probation service. As I have mentioned on a number of occasions, the powers to do that were helpfully left for us in the 2007 Act by the previous Administration.

Under the 2007 Act, the Secretary of State may contract, with a probation trust, providers from the private or voluntary sector, or he may provide probation services directly. The Secretary of State intends to use the powers conferred by that Act, together with his common law powers, to create and sell companies, and to transfer the delivery of a large proportion of the probation service to the private sector via contractual arrangements involving the formation and sale of a number of new community rehabilitation companies. That is the basis of the approach.

Of course, this has not come out of a blue sky. The department’s rehabilitation reforms, like any other major government project, are subject to additional scrutiny by the Cabinet Office and Her Majesty’s Treasury, and through the Government’s Major Projects Review Group. Her Majesty’s Treasury approval is required for projects outside Parliament’s delegated authority, and the programme team is finding this full engagement of particular use in learning from the experience of other government departments.

Therefore, I do not accept that this matter has not received very thorough preparation, as suggested by the noble Lord, Lord Ramsbotham. This major piece of legislation is being managed quite properly. Ultimately, after all the rhetoric, the sting was in the tail. The noble Lord does not want this Bill to proceed and neither does the noble Lord, Lord Beecham. That is good opposition politics.

[Lord Beecham]

I am sorry but that is not the position. I am certainly happy that the Bill should proceed. An improved version of this Bill should proceed, and one of the improvements is contained in this amendment.

[Lord McNally]

One problem with piloting this Bill is that I am supposed to sit here and listen to all the aspersions about the capabilities of my department and the intentions of my Secretary of State, as well as all the other brickbats that are thrown. However, if anybody takes on board anything like the full intention behind the amendment, it will be clear that the two noble Lords want to throw a considerable spanner in the works. If that upsets them, I am very sorry but it is true. I remain committed, as I hope the House does—it gave the Bill its Second Reading and went through Committee—to what I have always seen as the deal that this Bill puts forward.

That deal is that we are putting forward a major reorganisation of probation in a way that releases the resources to provide care, guidance and support to a very important section of those who have been sentenced to fewer than 12 months—the group that is most likely to reoffend and to get into that whirligig of crime that we are trying to break. I say that each time the noble Lord, Lord Ramsbotham, tables one of his amendments to delay the Bill. We are putting this forward with good intention, with a great deal of preparation and work, and with a clear determination to put before the House as much information as we can. We are developing a case and we will go into a certain amount of commercial negotiation but with the full acceptance that we are doing something very radical. To use the statistics from a leaked report, as the noble Lord, Lord Ramsbotham, just did, is not worthy of him.

I know that the noble Lord gets upset when he is attacked, yet when one rereads his speech one sees that he is very willing to dish it out. He throws out figures of 80% of this and 60% of that when he knows as well as I do that we are talking about a specific management tool that was used and developed by the previous Labour Government inside government, not to assess definite threats or problems but to identify issues that need further work. That is what the process is.

We have had it before with other Bills—this sudden idea that somewhere inside government these risks are being hidden from the public and Parliament, when the Opposition know full well that what is being gone through is an exercise that enables those who are working on these various bits of policy to identify which particular area of policy they need to develop, do work on and make proposals in relation to. It is not, and never was, a forecast of what is going to happen. It is disingenuous to suggest to the House that that is what it is.

The noble Baroness, Lady Hamwee, was right to look at the amendment as it stands. It is very widely drafted. It states:

“No alteration or reform may be made to the structure of the probation service”,

but that would not just encompass national changes to a new framework; it would also mean that probation trusts in the current model could make no change to their set-up, however minor, without parliamentary approval. I do not want to dwell on this, but I ask the noble Lord to think carefully about whether that kind of parliamentary micromanagement is sensible in legislation.

I turn now to the detail of the changes that we are proposing. First, let me put on record that the Government recognise the excellent work that is done by the probation professionals across the country. I have said that time and again from this Dispatch Box. Our proposals for reform seek to build on those achievements, not to minimise them. We are doing that in two ways: first, by extending rehabilitation to all offenders who need it through the provisions in this Bill; and, secondly, by seeking to restructure the way in which these services are delivered by opening up the delivery of probation services to a wider market and by bringing the retained public sector probation service into a national entity. These latter elements of our reform proposals are crucial to the core aim of our proposals: to break the cycle of reoffending. We do so for three reasons. The first is that by opening up the provision of rehabilitation services to the private and voluntary sectors, we are seeking to promote additional innovation and investment. Despite the excellent work and commitment of those supporting offenders within the public sector, we are unable to achieve this fully under our current structures.

Secondly, by restructuring the public sector probation service into a national entity, we are focusing public sector resources on areas where it is most needed: on protecting the public from harm and providing clear and impartial advice to sentencers. By managing this service nationally, we are seeking to drive excellence across the country, bringing all delivery of these services up to the level of the highest performers.

Finally, and perhaps most importantly, through both elements of this structural reform we are seeking to drive efficiency and savings in current practices and to provide the necessary investment to open up provision to all those who need it. I remind noble Lords that we simply cannot afford to expand rehabilitation to short-sentence offenders without these savings.

I now turn to the detail of the structural reforms that we are proposing. We are committed to maintaining a strong local delivery structure within the public sector probation service. Although current trusts have clearly built excellent relationships with other local delivery partners, much of this local working does not take place at the level of the 35 existing trusts but within the 150 local delivery units that sit beneath them. Our firm intention is to retain a strong local delivery structure based on these units, providing clear representation and involvement within both local authority and criminal justice areas.

Senior managers in the new organisation will have a strong presence within the National Offender Management Service and the Ministry of Justice, with directors for both England and Wales sitting on the NOMS board. Probation has often been viewed as the junior partner within NOMS, and this reorganisation is an opportunity to remedy that.

For probation functions that are being competed for, we are committed to retaining the skills, expertise and experience of operational staff currently within trusts. We are working closely with unions and associations representing probation providers to ensure that any process of selecting staff for the new structures is fair and minimises disruption as far as possible. We have also been engaging with interested parties to develop proposals for a professional body for the probation profession, and are strongly supportive of this idea.

We also recognise how crucial working in partnership is to the successful rehabilitation of offenders, and how probation trusts are integral to many of these excellent local partnership arrangements, including integrated offender management. The Government are determined not to disrupt this, and we are clear that contracted providers will need to demonstrate how they will engage effectively with key local partners when they are bidding for contracts.

As I set out in my earlier correspondence to noble Lords, we have already consulted extensively on the proposals in Transforming Rehabilitation: A Revolution in the Way We Manage Offenders. We received almost 600 formal responses to the consultation and held 14 consultation events that were attended by over 800 stakeholders, and the views received were invaluable in informing the reforms set out in the strategy published on 9 May. Both the transforming rehabilitation consultation document and the strategy were presented to Parliament, and we continue to welcome further interest from parliamentarians in these reforms.

I recognise the expertise that many Peers have on these issues, and I am committed to ensuring that noble Lords are kept informed of and involved in these reforms as they are taken forward. A number of other supporting documents have been and will be published that are available via the Ministry of Justice website: namely, the summary of responses to the consultation, the payment mechanism Straw Man and the prior information notice. In order to make them more easily accessible, I will place copies of these and all future documents giving further detail about the design of the new system in the House of Lords Library. I am happy to arrange an all-Peers meeting as and when we publish further documents. If it would be helpful to Peers, I will also explore through the usual channels the possibility of an opportunity for further parliamentary debate on these proposals outside the realm of this Bill.

In short, I am absolutely committed to ensuring that the Government engage with Peers and other parliamentarians as we develop the detail of our reforms. However, I stress again that the significant benefits that these changes will deliver, including the extension of rehabilitation to short-sentence offenders and the creation of “through the prison gate” resettlement services, are affordable only as part of a wider package of reforms. I hope that Peers will be able to support the Government in taking these reforms forward.

I hope that these points of detail will provide noble Lords with some reassurance as to the structural changes we have proposed, and in light of this I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am grateful to the Minister for that very full explanation of the Government’s approach, and I derive a reasonable degree of comfort and assurance from it. I am not entirely convinced by the concept of the National Probation Service as an improvement on the more localised service that is currently being delivered through probation trusts at local level. I was not a great admirer of the previous Government’s decision to create the National Offender Management Service either. The Minister and I are apparently at one about that.

[Lord McNally]

I remember our debates on that decision. Part of the problem with the last reorganisation was what we said at the time would be the downgrading of the probation service by having no national voice. That is the real win in this reorganisation: the probation service being where it should be, at the top table and with direct access to the Secretary of State.

[Lord Beecham]

I can certainly see the case for an arrangement of that kind, but the operational workings of the service are better driven at a more local level, with the service being involved in the relevant areas— as I said, I think there are 35 at the moment—by engaging with the other partners, which are a necessary part of dealing with the problems of offenders. That includes magistrates, who I understand will no longer be involved in this process, and there is some concern about that among magistrates. It also includes other government departments, such as the DWP, local authorities and the voluntary sector operating at a local level.

I continue to have reservations about the nationalisation of the service, as it were, which again might differentiate me from Lenin. I am reasonably assured by the process that the Minister describes, but on the more substantive issue I still have some anxiety, which may be shared generally, about the process of identifying a change of category and the reference upward to the probation service, however constituted, particularly if there was a large jump from a lower-risk case, which might well be supervised by a contractual or voluntary organisation at a comparatively low level of skill, which might make it more difficult to detect the change. Without suggesting further pilots, since these are not in fashion at the moment, it would be helpful to hear from the Minister at some point, perhaps just informally, whether the transition will be kept under review and an effort made to collate the experience across this scheme to see how it works over a reasonable period.

The other question that arises is how this arrangement of transfer will affect the contract. I suppose it should not be assumed that a transfer of risk necessarily means that the provider has failed in their contractual obligation, because there might not be another offence. Again, I appreciate that we are talking about cohorts, but there are some significant numbers here. Given that 250,000 people are to be involved, I do not know how big the cohorts are to be. I am not asking for an answer to this now—again, perhaps it could be by letter—but if there is a change of category so that at different times you have two separate organisations with responsibility for part of the cohort, how will that impact upon the payment system? Are there any incentives, perverse or otherwise, in that context? For example, if somebody was a bit difficult at the lower level and if there are large numbers, it might be convenient to move them up to the probation service. Will that have an implication for the funding?

That is a rather separate point, I admit, and not covered by the precise terms of the amendment, but it is perhaps worth exploring. However, in the circumstances I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I had hoped that there would be a clear acceptance of the notion that a trial should be made of the veterans’ court concept. I appreciate that it is probably not necessary for legislation for this purpose, but there has to be a peg on which to hang the proposal and this was a suitable example for such an exercise. Given that we are not talking about large numbers and that it would obviously be sensible but not essential to pilot such a scheme, and that the costs would be minimal, I find it difficult to understand why the Government cannot say that they will look at all the issues and give this particular concept a go to see what works. The measure would be, as has been the case elsewhere, whether it results in reductions in the reoffending rates.

As the Minister said, we are not talking about vast numbers of people, and it should be perfectly possible to mount such an exercise and for the Government to give an indication that they will do that. The Government are not slow to announce other initiatives when they choose to—in particular, the Ministry of Justice is not slow to introduce a wide range of proposals and act upon them.

I find myself, as I was in Committee, somewhat disappointed with the response.

[Lord McNally]

The noble Lord is being uncharacteristically churlish. I do not see how far I can go. I have already told him that the number of people is very small. Where would this court be established? What would it do? Which problem would it address? I have said that these issues can and should be discussed and that we will take them forward on an all-party basis and look for positive solutions. He must realise that I cannot go any further than that. I cannot say, “Right, we will set up a pilot in Newcastle”, and have them all sit round the room, not quite sure what they were there to do and what problem they were addressing. This needs a lot more work. It is an interesting area. We have responded as constructively as we can. The noble Lord has made progress; he should enjoy his success rather than continuing to grumble.

[Lord Beecham]

I am sorry that the Minister adopts that tone. I am sure he is personally warm towards this proposal. Whether that goes for other Ministers, I do not know; perhaps we will find out. I hope I have not given the impression of being churlish. We are approaching Armed Forces Day. We ought to be in a position to give a clear indication that what is ultimately a fairly simply project—the American precedent is perfectly straightforward, clear and inexpensive; the outcomes are easily measured, and it would be likely to be successful—will be undertaken. I do not ask the Minister to say definitely today that there will be a pilot project or some kind of experiment with a veterans’ court, I just find the tone less positive than perhaps our previous conversations had led me to believe it to be. Perhaps, far from being churlish, I was being a bit naive in interpreting what the noble Lord was saying.

We have a little while until Third Reading. I hope that we can make some progress, given that it is not a huge problem and that the ask in expenditure and organisation is not huge. However, I must reserve the position to bring something back at Third Reading. Of course I appreciate that it would have to be slightly different from this amendment, but I hope that is not necessary because I would like to go through the same Lobby as the noble Lord for a change on an issue of this kind, particularly given the client group that we are talking about.

I will not seek to test the opinion of the House this evening, but I do not rule that out if there is no clear indication of a positive attitude, which would not bind the Government for all time but would allow us to see whether we can learn from that American experience. I am not saying that it would necessarily be the outcome that one would hope for, but I hope that we will have an opportunity to find that out. In the mean time, I withdraw the amendment.

Alternative Business Structures

Debate between Lord McNally and Lord Beecham

Wednesday 19th June 2013 Lords Chamber

[Lord McNally]

My Lords, more than that, LASPO already allows us to extend the powers, if necessary. We therefore want to see the evidence that is emerging. If these groupings of separate facilities and companies seem to be using means to bypass the ban on referral fees, we will revisit our powers under LASPO. I understand the concern of the House on this matter.

[Lord Beecham]

My Lords, is the Minister aware that a solicitor whose practice is a major participant in referral schemes has recently been reported as saying that if a fee is paid for indirect referrals, whereby the client is merely given the name of the solicitor but has not received the name from the referring organisation, it would be outside the scope of the scheme? Is that a correct view?

[Lord McNally]

I do not think so. However, a lot of examples have sensibly been raised in the House today, some of them hearsay and some from direct experience, which suggest that what we intended to do in LASPO may not exactly be hitting the target, or that, as a result of organisational devices used by companies, the target has been moved. I can tell the House that we will talk to the regulators and look at some of these examples. If necessary, we will look at the powers that we were given under LASPO to make sure that we do what the House intended, which was to stop the practice of referral fees, particularly in the area of motor insurance.

Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 11th June 2013 Lords Chamber

[Lord Beecham]

My Lords, this amendment is the identical twin of Amendment 7A, which I moved last week in relation to Clause 2. As I said then, the effect would be to require the necessary supervision to be carried out either by a directly employed public service provider or by a person commissioned by such a public sector provider. I do not think it is necessary to rehearse the arguments again. I suppose that it is unlikely that the ministerial sinner will be in a repentant mood this afternoon, but I live in hope and I beg to move.

[Lord McNally]

My Lords, I am like St Augustine; I want to give up sin, but not yet. I will deal briefly with Amendment 24C. It would mean that the responsible officer for the supervision of offenders subject to community orders and suspended sentence orders would have to be a public sector probation provider. As the noble Lord, Lord Beecham, said, this is essentially the same amendment applied to community orders as the noble Lord tabled on the first day of Committee for supervision of custodial sentences. As I said then, the Government are committed to providing new supervision for those released from short custodial sentences. To achieve this aim, we, as a responsible Government, have to be able to afford this additional supervision. To do that, we need to reduce the current costs of dealing with offenders.

We also want to encourage innovation among providers of probation services dealing with this group of offenders serving community sentences and suspended sentences. It is important to ensure that we continue to improve the reoffending rates of this group of offenders, as well as of those serving custodial terms. Paying providers in full only where they are successful at reducing reoffending will not only make savings; it will drive down our reoffending rates. I hope that the noble Lord, Lord Beecham, will withdraw his amendment now that I have clarified what the Government’s intentions are.

[Lord Beecham]

My Lords, I thank the noble Lord for the repetition of the stance that he took the other night. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

Deary, deary me. If the best we can do is some anecdote about paint not turning up on time, that must be a sign of some pretty thin paint. Of course, we are at the very start of the Bill’s progress; it is the second day of Committee in its first House. I am perfectly happy to acknowledge that noble Lords can ask all kinds of questions about what is done—“Give me firm answers now”. However, the truth is that we are doing something extremely radical, which the previous Government tried and backed off from. Let nobody doubt that payment by results in this area is exciting.

By the way, I think that the noble Lord, Lord Beecham, should take full responsibility for that paint story. I cannot imagine that the noble Lord, Lord Ponsonby, who is a gentle soul, would attempt such a malicious intervention. It has Beecham fingerprints all over it. Let us be clear on that.

[Lord Beecham]

Is the noble Lord going to put me on probation?

[Lord McNally]

Yes. I have never suggested that the noble Lord, Lord Ramsbotham, is trying to throw a spanner in the works. I know that he wants this to work as much as I do. One of the values of the parliamentary process is that legitimate questions are asked about how this or that will be done. As the process unfolds, I will do my best to make sure that the House is informed.

We are working at this moment, not in advance of legislation but within the department, on how contracts and competition will work. We are not entirely flying blind on this because, as the noble Lord, Lord Ramsbotham, has said, payment by results has been tried in other parts of Whitehall. Of course we are taking advice and learning from both the successes and the failures of other departments. That is being built into our process. The noble Lord referred to gaming in the NHS experience. That will certainly be looked at. He mentioned transition costs being built in, and verification. We are working and consulting with other departments on these matters. It is very interesting. I can remember the first prospects for privatisation of prisons and a lot of the debates that went on. Even the noble Lord, Lord Ramsbotham, would acknowledge that with the privatisations of prisons lessons and efficiencies have been shown and standards set which have been to the benefit of the prison system as a whole. We anticipate that a similar process will take place in this case.

The Government are very clear that we are trying to carry through quickly a very radical programme, addressing a problem which defeated the previous Government. As earlier debates today have shown, our attempts to address it have widespread support across the House.

We will need to have a good understanding of the support that probation providers give to short-sentenced offenders during licence and supervision. We will need to keep a very close eye on the proportion of offenders breaching supervision, and on how magistrates decide to respond. We will also need to watch very carefully for any changes in sentencing practice.

As I have made clear, it is not the Government’s intention that this Bill will result in changes in sentencing practice, and nothing in the Bill alters the existing custody threshold. However, let me reassure noble Lords that we will be monitoring this and other issues extremely closely. Again, the noble Lord, Lord Ramsbotham, is quite right that there are a lot of other initiatives. This Government are exciting and radical, and are doing things across the piece. Of course, progress we are making in other areas will impact on the criminal justice system, just as our successes will impact on other parts. That is what happens when you have a radical Government.

We will also make sure that we are open and transparent about sharing data and information wherever we can. There are already well established mechanisms for making available many of the types of information that the noble Lord, Lord Ramsbotham, has highlighted in his amendment. On changes in sentencing trends, for example, we publish every quarter a Criminal Justice Statistics bulletin that includes detailed information on sentencing outcomes and trends. This is a national statistics publication, so it is subject to the appropriate checks and safeguards. Any changes in sentencing practice will be clear from this report. In addition, the Sentencing Council has a duty under Section 130 of the Coroners and Justice Act 2009 to publish a report every year on the impact of changes in sentencing practice on prison and probation costs. Any changes to sentencing practice as a result of this Bill will fall under that duty. The independent council, with all its expertise on sentencing, is best placed to carry out that analysis.

Similarly, on breach we already publish licence recall statistics every quarter in the Offender Management Statistics Quarterly Bulletin. Again, that is a national statistics publication. We want to make sure that, in the future, that includes recalls of prisoners released from sentences of less than 12 months, and includes committals to custody for those proven to have breached a supervision requirement. Likewise, we publish proven reoffending rates every quarter, broken down by type and length of sentence. That is also a national statistics publication.

I hope this makes it clear that we are not starting from scratch. I also take pride in the fact that this has been one of the most proactive Governments in putting out their statistics and information, allowing various parts of the Government to be checked on performance. The Government have worked hard over the past three years to improve the transparency of the criminal justice system, and we would look to make available much of the information that Amendment 34 details through the existing mechanisms we have.

The Secretary of State is already subject to a duty to publish information of this sort. As I suspect the noble Lord is aware, given that his amendment follows some of its language very closely, Section 95 of the Criminal Justice Act 1991 requires the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information that allows those working in the justice system to become aware of the financial implications of their decisions and information that allows those working in the justice system to understand the effectiveness of different sentences in preventing reoffending.

We already consider it expedient to publish not just annually, but quarterly, much of the information that Amendment 34 mentions. That will continue to happen if the provisions of the Bill receive the agreement of both Houses. Therefore, while I understand, welcome, and agree with the intentions of the noble Lord in tabling this amendment, I hope that what I have said reassures him that the Government are committed to understanding and sharing the impacts of this Bill and to being as transparent as possible in delivering it forward.

In doing so, I remind noble Lords that costs for extending supervision will ultimately be dependent on the outcome of competing offender services in the community. If we were to give figures at this stage, it would put at risk our ability to agree value-for-money contracts with providers. However, I hope that my commitment last week to take away the impact assessment for the Bill and to consider how we could expand it will provide some additional assurance. Work is under way to revise the impact assessment as I speak, and I hope to be able to bring back a revised version soon. I know what has been said about the value of that on Report. In the light of these assurances I hope the noble Lord will feel able to withdraw his amendment.

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[Lord McNally]

The noble Lord beat me. I have been racking my brains for a suitable Shakespearean quote to come back at him. I suppose we could say that this is a “Government of wonders”. I am reminded of the late Lord George Brown, who, when he was Economics Minister, stood up at the Dispatch Box, banged it and said “This Government are running the economy in a way that it has never been run before”, and was then surprised when the Opposition cheered him to the echo.

In this last group of amendments, we turn to the provisions on consequential and transitional arrangements. The provisions in Clauses 18 and 19 are mainly technical, and are also fairly standard constructions, which can be seen, for example, in the Criminal Justice Act 2003. The noble Lord, Lord Beecham, seems to be saying that these amendments are designed to ensure that Parliament has a say before order-making changes are made.

Clause 18 allows the Secretary of State to make provision that is consequential, supplementary or incidental to the provisions of the Act by an order that is subject to the negative procedure. This clause mainly amends other statutory schemes, some of which are complicated and technical in nature. It is therefore eminently sensible for there to be a power to make the consequential or other changes needed to ensure those provisions work well with the provisions of this Act.

Those changes should be subject to the negative procedure where possible. Clause 18(6) makes it clear that where an order under Clause 18 is made that amends another Act, it is subject to the affirmative procedure. Amendment 35 would remove Clause 18(2), which makes it clear what the power can be used for. The power itself is conferred by subsection (1), so the amendment makes it unclear what the power may be used for: it would not remove the power. There will be an opportunity to scrutinise the technical changes made by any order made under Clause 18. I do not believe that these have to be affirmative orders, and where the order is not subject to the affirmative procedure it will be subject to the negative procedure.

Amendment 36 is more specific in that it would make any order made under Clause 19 subject to the affirmative procedure. Clause 19 makes arrangements for transitional provisions and introduces Schedule 7, which sets out in what circumstances the changes made by the Bill apply. For example, it sets out how the new supervision changes apply to different sentences in different circumstances. The power to make transitional, transitory or saving provisions can be used only if those provisions are related to a commencement order. Under this Act, commencement orders are, as is usual, not subject to a parliamentary procedure. It would therefore be odd for the power to include transitional, transitory or saving provisions on commencement to be subject to the affirmative procedure.

Clauses 18 and 19 are needed to implement primary legislation flexibly, and they are often technically complicated. I do not think that noble Lords would particularly welcome a detailed debate on affirmative orders. I do not know: I could think of one noble Baroness who would relish a detailed debate on affirmative orders. Oh, she has gone. We teased the noble Baroness, Lady Hamwee, earlier. I am not convinced that such a debate is a good use of your Lordships’ time, or is what this amendment actually intends.

In asking the noble Lord to consider withdrawing these amendments, I take the opportunity to say that this has been very useful and productive Committee consideration of this Bill. We will return to detailed points on Report and we have already had a few Mafia-like warnings—you know where we live—that there will be consequences if we do not respond. However, I have appreciated the general support on all sides of the House for what we are trying to do in tackling the problem of reoffending, which has proved very difficult for successive Administrations. We claim no genius in our solutions, but we are genuinely trying to find both the resources and the flexibility to tackle this problem. The contribution of this House to getting it right is enormously appreciated.

[Lord Beecham]

I am grateful to the noble Lord for his reply and his essentially good-humoured approach for most of the time we have been discussing the Bill. I made it clear at the outset that these were probing amendments only, so he perhaps went a little further than he needed to in responding. Nevertheless, I am grateful. I echo his words about the proceedings having been useful. How productive they have been will very much depend on the Government’s response on Report. I hope it will be a little more positive than he has indicated, or has been allowed to indicate, so far. I beg leave to withdraw the amendment.

Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Wednesday 5th June 2013 Lords Chamber

[Lord Beecham]

My Lords, I strongly sympathise with the noble Lord’s observations and share his strictures on the substance of the proposals that we are to debate. I must, however, thank the Minister for arranging a meeting yesterday, and I thank the Secretary of State and the Under-Secretary of State in the House of Commons for attending that meeting. However, in the nature of things, it lasted only an hour and we were able to get through only three clauses of the Bill. That underlines the difficulties that your Lordships will face in debating adequately the complex proposals before us.

The noble Lord, Lord Ramsbotham, referred to the inadequacies of the impact analysis, which, I have to say, was exceptionally flimsy, even by the standards of this Government. A huge area of public policy, the future of the probation service, on which much of the Bill depends, is not actually included in the Bill. Amendments in my name and in the names of other noble Lords will raise that issue, but it is not in the Bill at all.

It is only two weeks since Second Reading and your Lordships’ House has been in session for only six days since then. Given the recess, it has been difficult enough for Members of the House to consider and draft amendments without the benefit of the kind of information to which the noble Lord referred. He has itemised many of the relevant questions. I, too, raised questions, as did the noble Baroness, Lady Linklater, and the noble Lord, Lord Dholakia. I do not expect the Minister to occupy his Whitsun Recess by replying personally to all these matters but the department should surely have taken steps to respond to those questions and allow the debates that will take place today and next week to be better informed. It is unfortunate that that has not been the case and I hope that the Minister will feel able to assure the noble Lord that answers will be given. It is not good enough for them merely to arise in the context of today’s Committee debate. We ought to have the answers laid in the Library in a consolidated form and available for consideration before we reach Report in some three weeks’ time. I hope that the Minister can build on the good work he did yesterday, rather than the omissions of the department, in dealing with these requests.

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

My Lords, a lot of what the noble Lord, Lord Ramsbotham, said was very familiar, because of course it was also his Second Reading speech. I make no complaint, but I say to the Opposition that they may be on this side of the Box one day. If using this kind of amendment to prevent a Committee stage proceeding were to become too much of a habit, it would be very easy to gum up government business.

I associate myself with the noble Lord’s words about Sir Patrick Nairne, because I was also a Whitehall warrior for quite a long time. I worked with Sir Patrick in the 1970s. My experience of both Whitehall and Westminster makes me less than apologetic about our approach. Governments are always faced with attacks for having no policy and being too slow, or for having too many ideas and rushing Parliament. I would rather we had too many ideas.

The truth is that successive Governments have tried to tackle the challenge of rehabilitating offenders. We have put forward our proposals for scrutiny and I am old fashioned enough to believe that that is exactly what the Committee stage of a Bill is for. I look forward to the next eight hours or so today and to the next Committee day for the House to do its proper job of scrutiny and questioning, and I will do my best to give answers.

On the specifics of the impact assessment, I agree to take another look at it and see where we can update it for the benefit of the House. I will bring that impact assessment back before the Bill completes its stages in this House. I hope that will be in time for Report. However, as noble Lords on the other Benches who went through similar exercises will know, we have to hold back certain things for commercial reasons. We are about to enter negotiations to get the best deal for the taxpayer and therefore do not wish to reveal our entire hand in advance. I will update the impact assessment as much as I can but I suggest that we now get on with the work of the day and the work of this House, which is the detailed scrutiny of the Bill.

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[Lord Beecham]

My Lords, I join the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, in supporting the amendments of the noble Baroness, Lady Linklater. She has a strong point in Amendment 2 on the need to avoid rigidity in the system, to look at particular individuals’ needs and to ensure that supervision is proportionate and flexible according to the circumstances of the case. There is some danger, under the Bill’s present formulation, that that will be rather more difficult than it should be.

I am also particularly enthusiastic about Amendment 4. It seems that continuity is critical here, particularly as the people we are looking at are themselves in a state of transition. It does not seem helpful that those who supervise and assist such people should change in the course of that transition. Of course, there has to be some cut-off point, and the age of 21 is reasonable. I hope that the Minister will look sympathetically at that. It also strikes me that it may be a more cost-effective way of dealing with offenders in that category, because you do not have the process of handing over and entering into separate contractual arrangements with a different organisation and all the rest of it when you have already got a provider with a budget and contract which should be capable of being extended if required under the circumstances of the case.

I hope that the noble Lord will undertake to have a look at this and come back on Report. It seems sensible and quite consistent with the approach that the Government seek to pursue.

[Lord McNally]

My Lords, I am grateful for the debate that my noble friend has stimulated. She is absolutely right that this group of people is the most challenging in terms of the prolific number of offences for which they are responsible. In many ways, this can be a key period in their lives and can determine whether they live a life of crime or become constructive members of society. I also take the point made by the noble Baroness, Lady Howe. For me, there is a sense of shame that so many who have been in our care end up in our criminal justice system. We must go into that more deeply and we shall try to do so, in part, through the Children and Families Bill and other legislation.

What gives me some optimism that we shall be able to make this new legislation work is that there are good examples: the Manchester scheme that the noble Lord, Lord Ramsbotham, referred to and the mentoring in Peterborough. This was raised in our discussion yesterday and I want to explore further the mentoring by those who have committed earlier misdemeanours but now play a positive role in life. I remember going to Stafford and meeting a mentor who had been heavily drug dependent, but he had cleaned himself up and was now having a really good effect on young people through the advice that he was giving them.

The noble Lord, Lord Ponsonby, expressed the dilemma at Second Reading that persistent offenders end up being given short sentences that send them into a prison environment. I fully accept the point made by the noble Baroness, Lady Linklater, that that puts them into a completely ill-suited environment in terms of rehabilitation. That is one reason why part of what we are trying to develop is to start rehabilitation in prison, so that they get used to the world of work and address various failings such as literacy or drug or alcohol dependency. One of the first things I was told when I started visiting prisons and youth offending centres was, “We just start to have some effect and then we lose them”. I repeat that the period of 12 months’ supervision is not punishment but the continuation of help.

My noble friend said that this amendment is designed to provide a power for the Secretary of State to contract the rehabilitation services when an offender volunteers for such programmes. I have already said why we think that both licence and top-up supervision should be applied to all offenders. I understand the point that often the most effective rehabilitation occurs when the offender decides that they want to change. However, the simple fact is that many offenders will not volunteer for rehabilitation programmes. Those who initially volunteer may change their mind when more challenging questions are asked of them, or when they simply become bored of what they may decide is undue hassle. Offenders who fail to comply with the programmes will simply withdraw their consent to avoid any consequences of failing to undertake the programme they initially signed up for.

In the Bill we are ensuring that all offenders have the opportunity to receive help and assistance on release from custody. We are saying to offenders, “Here is your chance to rehabilitate yourself and turn your life around, but you cannot walk away from this and expect no consequence if you do”. That is why the licence and top-up supervision is mandatory, but also flexible, so that providers can tailor the type of support and intensity that is needed for each offender.

I have taken time to explain that we think licence and supervision should be mandatory, but let me deal very quickly with the powers of the Secretary of State to contract for voluntary-based rehabilitation services. The fact is that the Secretary of State already has the power, and nothing in the Bill restricts that power, even though our intention, in the vast majority of cases, is to make licences and top-up supervision mandatory. In short, therefore, the Secretary of State does not need this power, and I ask my noble friend to withdraw her amendment.

Amendment 4, on the top-up to 21 year-olds, also takes my noble friend’s application of top-up supervision. I understand that the intention of Amendment 2 is to ensure that offenders aged under 21 on release from custody will serve a period on licence but not be subject to top-up supervision. I understand my noble friend’s argument, but I disagree with it. The Government believe that all those aged 18 when released from custody should get the same level of supervision and support. The amendment would mean that an offender sentenced to two months’ imprisonment when aged 20 would serve only half their sentence in custody and have only a month of licensed supervision. Yet, as I said at the beginning, these young offenders have some of the highest reoffending rate of any group.

Our proposals in the Bill will ensure that offenders who are 18 when released from custody get 12 months of supervision in the community. I stress again that the type and level of supervision can be tailored to the young person’s needs. I expect that providers will develop specific programmes for this age group, offering a real chance to make a difference to the needs of young offenders. The Government see this as an opportunity for real support for young offenders, not as something that they should be excluded from.

I will clarify the point that my noble friend Lord Ramsbotham made about the crossover from YOT supervision to probation supervision. The Bill makes it clear that this will be a matter of judgment at that time, and of consultation to make sure that what is done is most effective. If the most effective course is to retain the YOT supervision, that supervision will continue. It fits in with what I keep on emphasising: this is not, to take the criticism of the noble Lord, Lord Beecham, an exercise in rigidity. It is quite the opposite. It builds in the most flexible of approaches to try to tailor to the needs of the individual the kind of help and support they are going to get. However, I disagree with my noble friend, although, goodness knows, I am in awe of his experience and expertise in this area. If saying to offenders in this age group, “For the next 12 months you are going to try to mend your ways” is somehow an unfair burden on them by society, I am willing to take that risk.

I suspect that if we can put this into place, we will start having an impact on this age group. As I have said, one of the lessons that we have to learn from the experience of this age group is that without this help, they get out of our control, become repeat offenders, going into the adult criminal justice system and the prison system with disastrous results for both themselves and their society. Therefore, I do not think that this long period of 12 months’ supervision ahead of them is somehow a terrible burden on these young people. For a significant number of them, it may be the best thing that ever happens in their lives.

I hope that my noble friend will consider withdrawing her amendment. However, I will carefully read Hansard and look at our proposals for this age group. I agree with much of what noble Lords have said about offenders in this age group; if we get it right for them, there will be enormous benefits in terms of the impact on future criminal behaviour.

As I said, I am willing to look at the arguments and think about this further, but I think we have got the balance right. I hope that the noble Baroness will consider the arguments that I have deployed. In the mean time, I hope that she will be willing to withdraw the amendment.

[Lord Beecham]

Accepting for a moment, for the purposes of argument, the noble Lord’s assurance—and of course I do accept his assurance—that there is the option of transition not being automatic, who decides in the end what should happen? Does this have to be agreed between the YOT and the probation service, or does it go back to the court? Where would a decision be made if there is a disagreement between the existing provider and the future providers?

[Lord McNally]

That is one of the things that I want to think about. I hope that the two bodies concerned would make a practical decision about the needs of the individual, but as the noble Lord, Lord Beecham, said, if that was not available, who would be the judge? Would that have to go back to court? I will think about that, and if there is a gap we will fill it.

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[Lord Beecham]

My Lords, this amendment seeks to amend subsection (2) of Clause 2, which, in turn, seeks to insert new Section 256AA into the Criminal Justice Act 2003. The amendment seeks to amend new subsection (8) of the new section in relation to the definition of a supervisor of persons subject to the supervision which will, when the Bill is passed, take effect for prisoners serving less than two years.

The purpose of the amendment is to be clear that the provider of the supervision should be a public sector organisation. At the moment, presumably it would normally be a probation trust or an organisation commissioned by such an organisation. It seems to me and to my noble friend important that there should be a clear public line of accountability for the provision of this service, which does not necessarily seem to be the case according to the wording of the proposed subsection as it now appears. It is a fairly basic point. Given that we are looking at a significant responsibility, some of which at the moment is not exercised at all by the probation service—that is to say, supervision of people serving less than 12 months—an important line of public accountability should be established. That in no way precludes, of course, the engagement of the third sector in relation to supervision of offenders, as long as they have been contracted by a public authority.

Of course, there are many examples of probation trusts working with voluntary organisations at the moment. I know that in my own area, Northumbria, a probation trust has very good working relationships and in Newcastle there is a successful scheme that has been commissioned in that way. There is no intention at all to ensure that all the supervision is actually carried out by the probation service but, if that is not the case, there should at least be that line of public accountability. I beg to move.

[Lord McNally]

My Lords, the noble Lord will be quick to tell me if I am wrong but, as I read it, Amendment 7A has a very clear effect. It is to ensure that all top supervision of offenders should be carried out by the public sector providers or those bodies commissioned by the public sector. I have never hidden from this House that we believe, particularly in the present economic conditions, that we will be able to find the resources to carry through our rehabilitation revolution only by employing payment by results and involving the skills and initiatives of the private and voluntary sectors.

We are breaking new ground in our approach. We are committed to providing, for the first time in decades, supervision for those released from short custodial sentences. One of our key objectives is finally to tackle the unacceptably high level of reoffending among this group. That prize is worth striving for. However, to achieve that aim we have to be able to afford this additional supervision. To do that, we need to reduce our current costs of dealing with offenders. The noble Lord, Lord Ramsbotham, does not think that we can do this. I say to him that we cannot do so by only going down old ways and old costs. Competing the majority of probation services will improve value and efficiency throughout the system, making taxpayers’ money go further. For example, competing the community payback contracts in London saw a £25 million saving over four years. We will also look at efficiencies within the public sector by consolidating back-office functions and creating one national public sector probation service. That is another real plus for the Bill. I remember the debates nearly a decade ago, and I was never happy that the probation service was a kind of junior partner to the Prison Service. One of the effects of the Bill will be to create a national probation service with real status and a real voice in these matters. We also want to encourage innovation among providers of probation services to ensure that we make a real change in reoffending rates. By paying providers in full only when they are successful at reducing reoffending we will not only make savings but will drive down reoffending rates.

We want to avoid what the last Government did. We do not want to create a sentencing regime that is overly prescriptive, complex and unaffordable. In other words, we do not want to create another custody plus sentence, the flagship policy of the 2003 Act, which ended up never being implemented. I hope the noble Lord, Lord Beecham, will be reassured that we have learnt those lessons from the past, and that in the light of my explanation he will withdraw his amendment.

[Lord Beecham]

If I do, it will not be because of the noble Lord’s explanation. However, of course I will not press this matter to a vote.

We will come later to the question of payment by results and the considerable doubts that many of us on these Benches and in other parts of your Lordships’ House have about that as an appropriate way of dealing with the sensitive area of supervision. I stress again, as my noble friend Lord Ponsonby made clear earlier, that we strongly support the drive for reducing reoffending and that we are engaged with a question of the practicalities.

I come back to the position that in our view that line of accountability at the level of the provision of service should ultimately rest with a public sector body and not simply be hived off completely, even if the work is subcontracted—and there is no particular reason why that should not be the case. I mention specifically third sector organisations because they have a particularly valuable role to play. My amendment would not exclude contracting with private sector organisations, for that matter. However, they would be contracted by the public sector body with the legitimate experience. However, as I indicated, I will not press this tonight, and I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, it is common ground between all Members of your Lordships’ House, and reflected in some of the amendments that we have already debated, that the problems suffered by and indeed occasioned by offenders are complex and often multiple, and that in dealing with them no single agency is likely to be able to resolve all those problems or help people entirely overcome the difficult issues that they face. On the contrary, it is quite clear that in a number of areas, collaboration between various agencies will be required if we are to achieve the shared objective of reducing reoffending, from the perspective both of the advantage to society and of the individuals concerned. Therefore, looking at what is most likely to avoid reoffending, we know—and it has been rehearsed many times in your Lordships’ House—that the principal steps that can be taken to diminish reoffending relate to employment and in particular to housing, but also to issues such as health.

A number of different agencies could and should be involved in all these aspects, both in the direct provision of services and in the case of commissioning services, so that, for example, local authorities clearly have a role. I suggest that in shire county areas that is at both levels—of adult services which are county level responsibility, and housing, which is a district level responsibility. However, of course, in unitary authorities they are located within the same authority. Obviously the police have a role, but also in terms of employment one has to look at the Department for Work and Pensions. In terms of health, in the new organisation of the health service, I suggest that one has to look at two levels: the clinical commissioning groups and the national Commissioning Board, because they have responsibility over areas of mental health.

All these need to be involved, and many of them are already involved, in local arrangements, such as community safety partnerships and crime and disorder reduction partnerships. Some of them are involved in the health and well-being boards, which prepare strategic needs assessments. I would hope that the needs of offenders are reflected in those bodies. However, the purpose of this amendment is to ensure that all providers of the services which the Bill seeks to introduce, or at any rate ensure are available, come together with the other relevant agencies so that a genuine cross-sectoral partnership is dealing with these issues. Of course, that puts a responsibility on the other partners, as well as on the direct providers of probation services or supervisory services.

I hope that the noble Lord will accept that, at least on this occasion, this is meant to be a friendly amendment, designed to achieve some progress on a commonly shared objective, and I look forward to hearing his response.

[Lord McNally]

My Lords, I always assume that the noble Lord, Lord Beecham, is working in the most constructive manner. I was a little brusque with him in my previous reply. I thought that perhaps buried away in his innocent amendment was an effect that might have undermined the purpose of our Bill. However, in respect of Amendment 7B, I would not even entertain such an unworthy thought. I understand where he is coming from; let me try to explain our approach.

This amendment would provide that all future providers of probation services would be responsible authorities for the purposes of formulating and implementing crime reduction strategies. It would also mean that all responsible authorities, not just probation providers, would be obliged to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships.

The Government fully share the sentiment in this amendment but nothing that we do will work unless it is rooted in local partnerships. The Transforming Rehabilitation strategy made clear that the Government expect new providers to engage with statutory and non-statutory local strategic and delivery partnerships. These will, of course, include community safety partnerships, but also others such as integrated offender management, safeguarding boards and youth offending teams. It will be in providers’ interests to work with other partners to achieve the best results, and our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

However, we also set out in the strategy our clear expectation that providers will need to demonstrate how they will work in and strengthen local partnerships to deliver the results that they are incentivised to achieve. As part of the formal evaluation of this, we will include a requirement that providers’ evidence how they will sustain and develop networks and partnerships. Once the system is up and running, we will monitor local partnership working as part of obtaining assurances of the delivery of services. We will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I have set out our commitment and the steps that we are taking to ensure that our reforms are rooted in local partnerships so that offenders can access the broad package of support that they need to get their lives back on track. Incentivising providers to focus relentlessly on reducing reoffending means that it is in their interests to work with other partners and in local partnerships. However, we must ensure that providers have the flexibility to do what works. Integration at local level works best when it is not mandated centrally.

Sections 5 and 6 of the Crime and Disorder Act 1998 already specify that where contractual arrangements so provide, providers of probation services will be responsible to authorities for the purpose of crime reduction strategies. We have no plans to change the legislation in this respect. We are doing further detailed work on the contractual requirements on providers, and will look at how we address issues such as lack of engagement with partners locally. However, as I have already touched on, it will be in the provider’s interest to work with other partners to achieve the best result under our system, and we will incentivise them to do so. We will monitor local partnership working as part of obtaining assurance of the delivery service. As I have said, we will liaise with the police and crime commissioners, local authorities and others in this task. We are doing further detailed work on the contractual requirements on providers and will look at how we address issues such as lack of engagement.

However, it will be in the provider’s interest to do this work. For this reason, although I think it is an important issue, I hope that my reply convinces the noble Lord that it is one that we are keeping in mind as we draw up the contracts. We will try to get the balance right between flexibility in operation, which we have continually emphasised, and an important emphasis on local engagement, commitment and monitoring, which the noble Lord has rightly raised in this amendment. Having given such a warm and constructive reply, I hope that he will agree to withdraw it.

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[Lord McNally]

My Lords, I hope I am answering the amendment that the noble Lord has moved, because I am just wondering what Amendment 8 would actually do. It would remove paragraph 1 of Schedule 1 to the Bill, which amends the 2003 Act and sets out the conditions under which the Secretary of State may top up supervision. I have already said that top-up supervision is a useful device to ensure that there is a reasonable period of supervision to enable a change to be made to the offending behaviour. Therefore, the amendment has the unusual and perhaps unintended effect of not removing the provision for top-up supervision that is contained in Clause 2.

[Lord Beecham]

It is purely a probing amendment. There is no intention to remove the provision.

[Lord McNally]

Instead, it would simply remove any statutory controls on the conditions that can be imposed during the supervision period. When sentencing offenders to custody, courts will be unaware of the limits to the conditions that may be imposed by the Secretary of State. This could affect their sentencing behaviour if they decide that they need to compensate for the risk of punitive supervision conditions being imposed. It also, strangely, retains the detail of drug testing and drug appointments under the top-up supervision, which are in paragraph 2 of the schedule, along with the process for dealing with the breach of supervision. However, it removes the reference to them as conditions of the supervision.

The noble Lord said that this was a probing amendment. I will look again and reflect on what exactly he was probing. If I need to clarify this, I will. On his question about a resident who for unforeseen circumstances was in breach, again, I hope that what we are doing is not setting up circumstances for individuals to fail; these are meant to be supportive, sensible, intelligent ways of dealing with individuals whom we know—as has been emphasised—often have very complex problems. The noble Lord has probed, I have responded, and if the matter requires further clarification, I will certainly provide it.

[Lord Beecham]

I am grateful for the second—unscripted—part of the noble Lord’s speech. In the circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I join the noble and learned Lord and the noble Baroness, Lady Howe, in supporting the amendments spoken to by the noble Lord, Lord Marks, which would help considerably. The noble Baroness’s amendment would remove the capacity to order a person in breach to be committed to prison. She said that there was no provision in the Bill for this measure to be used as a last resort. That is the substance of my amendments in the next group. It may be convenient for me to speak to those amendments now as I am advised that that is possible. It makes sense to do so, as my Amendments 15 and 18 would qualify the provision in new Section 256AC(4)(a) within Clause 3 by providing that a sentence for breach not exceeding 14 days is to be treated as a last resort. I hope that meets the point raised by the noble Baroness. Concerns were expressed about this provision in the consultation document, which the Government acknowledged in their response. However, as yet, their response has not been reflected in the Bill. In my submission, it would make sense to add that qualification, so that, in addition to the provisions in the amendments spoken to by the noble Lord, Lord Marks, the right of the court to impose a custodial sentence of up to 14 days would be preserved but it would be stated explicitly in the Bill that it is to be used only as a last resort. That is the sort of declaratory statement to which the noble Lord has referred in earlier debates.

Is the Minister in a position to indicate the anticipated number as regards the recall provision? I could not find it in the impact assessment. He may not be in a position to do that. However, the noble Baroness rightly referred to the very large increase in this regard—the 55-fold increase—in the past 20 years, most of which, as she rightly says, occurred over the past 14 years. Many of the custodial sentences for breach are imposed on young offenders. Indeed, the Prison Reform Trust has reported substantially on that problem.

I suspect that there is no great distance between the Minister’s position and that set out in the amendments of the noble Lord, Lord Marks, and in my Amendments 15 and 18. I would welcome the Minister indicating tonight or on Report that those measures will be included in the Bill, with the appropriate wording. The noble Baroness rightly referred to concerns about there being an increased readiness to impose custodial sentences for breach and the cost of this in material terms and, potentially, for offenders and the rehabilitative process. This is not a clear-cut issue and there are clearly arguments on both sides but I have heard concerns expressed by a senior member of the Magistrates’ Association as well as by the noble Baroness and other organisations. Accepting these amendments would go a long way to relieve those concerns while still leaving the court with the ultimate power to impose a custodial sanction as a last resort.

[Lord McNally]

I thank noble Lords who have taken part in this debate. Perhaps I could cover numbers and costs in the revised impact assessment that I will bring back to the House.

I say to the noble Lord, Lord Beecham, and the noble Baroness, Lady Howe, that I certainly do not want to see any benefits gained from a successful rehabilitation programme being dribbled away in the costs incurred through dealing with breach. That would be very self-defeating indeed and we must look carefully at that. However, although this is a wonderful Chamber in which to discuss these problems, I sometimes think that we try too hard to be understanding on these issues. In trying to understand all these terribly complex problems with which these people are faced, we do not face up to the fact that they have a choice. As I have said in previous debates, I remember from my childhood young people who experienced in their upbringing many of the problems we talk about in this House but who nevertheless grew up to be honest, decent, honourable members of society. It is a choice.

In our efforts to understand, I sometimes think that we leave some of these offenders with the belief that the gun is never loaded and that they will never have to face the consequences. As the noble Lord, Lord Ponsonby, has said in earlier debates, some offenders who have been given every chance, shown every understanding and been offered every opportunity still appear before the courts and the magistrates have no alternative. I am as willing to be as woolly a liberal as the next man, but we must also send a very clear message that as a society we do not intend to tolerate anti-social and criminal behaviour without a firm response. If we do not do that, some of the characters we are trying to deal with will never apply themselves to the offers we are making them that we hope will help them put their lives together again.

Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Wednesday 5th June 2013 Lords Chamber

[Lord Beecham]

My Lords, we now come to the black hole in this legislation. Astonishingly, given the scale of the changes proposed for a major national public service, the Bill does not deal with the proposed restructuring of probation. It is quite remarkable that this should be the case.

I have complained from time to time about the Government’s habit of engaging in pre-legislative implementation. What they are doing to probation is, in fact, worse: they appear to be about to implement their proposals without any legislation at all. What we see in the Bill is a series of consequences of their proposals rather than a proposal. This is in connection with a service which has met and exceeded all its targets, which won the British Quality Foundation gold medal for excellence for its achievements over many years and which has very high ratings from those with whom it has to deal: 98% of victims approve of the work of the probation service in the feedback that they have supplied and 82% of supervisions were completed satisfactorily. The record on the timeliness of reports to courts was as high as 99%. Only just under 50%—49%—of what is by any standards a difficult client group were placed in employment after serving their probation order.

Yet the Government now propose a massive change which will effectively exclude around half the work of the probation service from its future deployment. Some 70,000 cases will be effectively privatised. The probation service will be unable, in its present form, to bid to carry out the work which the Government have determined will be subjected to competitive tendering.

The service has done well in reducing reoffending. The Secretary of State has drawn attention to the reoffending rates. He has noted that, for those serving sentences of less than 12 months, reoffending rates have been rising. We have heard today about the scale of the problem of that group. Of course, that is a group for which the probation service has no responsibility. Where it has responsibility, for those with longer sentences, it has done extremely well in reducing reoffending. The Government propose effectively first to nationalise and then virtually to privatise most of the probation service. They will centralise control. Probation trusts will disappear. There will be 21 areas in which the work will now be carried out by tendering. This will mean that much of the work currently carried out by the probation service, and all the work on short-sentence offenders which has not been carried out by the probation service but which the Bill seeks to address—I repeat that we welcome that—will now be carried out on a contractual basis.

There are many concerns about that. Certainly, one of the effects is likely to be a reduction in the degree to which justice is local along with greater difficulties for voluntary organisations wanting to be involved in the work. There would effectively be a binary system of risk, with categories of low and medium risk to be dealt with by organisations other than the probation service, but with the probation service being responsible for high-risk cases. Of course, this appears to ignore the fact that there is movement between the categories. Around 25% of offenders will change from one category to another, many of them becoming higher-risk.

The proposals will clearly lead to confusion. There is a risk, to which I shall return in greater detail when we discuss an amendment specifically dealing with the issue of risk, of the public lacking the protection that a properly administered probation service can afford in the 15,000 or so cases a year that move into the higher risk category. As we shall explore later, it is very difficult to see how those cases will be effectively managed.

We need a proper legislative framework for this exercise of transferring responsibility into the private sector. The Government display, as usual, a touching faith in the competence of the private sector but their record in this area of justice is not very convincing. There have been the huge profits made in relation to an inefficient and inadequate system of tagging, with many failures of the system and a great cost to the public purse. The Minister will no doubt say that that has been changed, that there will be new equipment, and so on. Be that as it may, the original providers certainly did very well for themselves but not very well in relation to the purposes for which they were contracted. Just yesterday we heard the appalling news about the young offender institution run by Serco, one of those massive organisations that purport to be able to do everything anywhere. It was a terrible report on the mistreatment of offenders in a young offender institution.

The unwavering determination of the Government to move from public provision to private provision potentially poses a risk to the interests of the community in matters of safety. We need a proper legislative framework if there is to be any change in the probation service. We need reassurances about a whole range of issues and we need parliamentary approval for a scheme which may bring changes to the probation service, a service that is highly successful.

The purpose of Amendment 20 in the names of the noble Lord, Lord Ramsbotham, and myself is to seek to ensure that any change in the probation service will take place only after the full details have been discussed and approved by Parliament, rather than by executive order or, as it may be, by statutory instrument. This is so important that it deserves to be dealt with by primary legislation. That would certainly be my preference. At the moment we do not have the details and I do not think that the Government have worked them out. They are rushing to implement this programme. Mr Grayling wants things in place in time for the general election. This is too important an issue to be rushed in this way, especially when they are doing so behind the curtain.

We have seen many changes to major public services under the present Government. The health service is in turmoil, despite all the warnings and a very long legislative process. There is a grave risk that we shall see something similar in terms of the impact on the service if the Government press ahead with untested, undebated and unapproved legislation to change what has been a very successful service. I hope that the Government will think again about this. I hope they will see the force of having their proposals properly scrutinised, debated and approved, if that is what Parliament wishes. At the moment, it does not look as though Parliament will have that opportunity, and that simply is not good enough. I beg to move.

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

My Lords, I need the guidance of the noble Lord, Lord Beecham, on the correct pronunciation of the word “chutzpah”.

[Lord Beecham]

It is glottal—chutzpah.

[Lord McNally]

Glottal or not, that is an extraordinary piece of chutzpah. He knows full well that the powers that we are taking to reorganise the probation service were embedded in his Government’s 2007 Act. It is interesting to recall that during the passage of that Bill through the House of Lords, the issue of parliamentary scrutiny of orders creating, abolishing or amending probation trusts was highly controversial. Originally the Bill did not include any parliamentary scrutiny but the Delegated Powers and Regulatory Reform Committee identified it as an issue for further investigation. My noble friend Lady Anelay of St Johns tabled an amendment successfully introducing the affirmative resolution procedure to this clause in the Lords. The then Government overturned the amendment during ping-pong by tabling their own concessionary amendment providing for the negative resolution procedure on the basis that that would provide sufficient scrutiny without unduly taking up parliamentary time.

That is the background. Nothing was done behind the curtain or anywhere else. No one has ever heard me, from this Dispatch Box or anywhere else, attack the record of the probation service. The probation service does an excellent job, and I hope it has a very clear future ahead of it with a national role. However, we have to ask whether these things could be done better and more efficiently. As well as the successes of the probation service, we have had as a background to this debate the very disturbing levels of reoffending. I agree with the noble Lord, Lord Beecham; the private sector will be very much on trial during this period. We in government who have been preparing the contracts and guidelines for this new partnership will have to work very hard to make sure that they are watertight in terms of delivering value for the taxpayer.

--- Later in debate ---

[Lord Beecham]

My Lords, this is a very straightforward matter. The amendment simply seeks the collation of information from providers, whether of probation services or otherwise, so that it can be collated in an annual report and received in Parliament. I think that is certainly necessary in the early years, although maybe when the system settles down, in whatever form it ultimately takes, it will be a different matter. However, given the sensitivity around the proposals and, as the Minister himself puts it, the “radical” nature of the proposals—and bearing in mind our shared objective here, which is to reduce reoffending and to afford as much support as we can to people who have offended but need to reintegrate into society—it seems to me that the request that the information should be available to us is a fairly basic one. I hope the Minister can accept the spirit, if not necessarily the precise wording, of the amendment. I beg to move.

[Lord McNally]

My Lords, the noble Lord is always reasonable in his requests, but the implications are less reasonable. The impact of the amendment would be that all providers, regardless of size or place within the supply chain, would be required by law to produce an annual report for Parliament, as it does not distinguish between prime providers and smaller providers within the providers’ supply chain. This would provide a disproportionate level of scrutiny on a single aspect of service delivery.

I assure noble Lords that there will be a defined data set within the providers’ contract. This will detail what performance information providers have to produce and who is responsible for producing it. We envisage that this would include information such as the number of offenders supervised under top-up supervision and breach rates. We will ensure that reporting requirements strike a balance between providing enough information effectively to hold providers to account for their service delivery and minimising the bureaucracy required to collect and report the data. The Government will publish data and statistics relating to probation service delivery in line with our current practices. I hope the noble Lord, in the light of this, will agree to withdraw the amendment.

[Lord Beecham]

I take the Minister’s point and beg leave to withdraw the amendment. I indicated that the wording might possibly be capable of being refined. If we can achieve that one way or the other, that would be satisfactory.

--- Later in debate ---

[Lord Beecham]

My Lords, this is simply a probing debate, to explore the rationale behind Clause 8, in particular the length of the extension period contained in it. The extension period is one year, and I would just like the Minister to elucidate the thinking behind that and why that particular period has been chosen in respect of these matters.

[Lord McNally]

An extended determinate sentence or EDS is the sentence that is given to dangerous offenders. This is the sentence that replaced the IPP sentence in December 2012 as a result of the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act. An EDS is made up of a custodial term whereby offenders serve at least two-thirds of the sentence, after which the most serious offenders are considered for release by the parole board. After release, offenders are subject to extended-licence supervision. Clause 8 essentially closes a loophole whereby offenders serving an EDS could, although only in wholly exceptional circumstances, spend less than 12 months under supervision on release. Clause 8, by requiring the extension period of licence for these sentences to be at least a year, ensures that in every case offenders released from custody will serve 12 months under supervision. It is highly unlikely that an extended sentence would be imposed that resulted in less than 12 months of supervision. For this to happen, the sentence imposed by the court would have to relate to a dangerous offender who had received a surprisingly short custodial period where the court had chosen not to extend the licence period. I should stress that this is extremely unlikely to occur and there is no example of it having happened but we are taking the opportunity of this Bill to ensure that it does not happen in the future.

[Lord Beecham]

I thank the Minister for his reply.

--- Later in debate ---

[Lord Beecham]

My Lords, this is yet another proposal from the Government that is not included in the Bill and about which there again seems to be no real opportunity for parliamentary oversight. The notion of resettlement prisons is attractive, but there are a number of questions to be asked about it, in particular, about how the system is going to work and the potential costs. There are also questions in relation to women prisoners especially because at the moment there are only 13 prisons for women and there is concern that, since they are not evenly geographically distributed, women may be housed in one place and then moved to what is, effectively, an all-male institution close to their home because there is no women’s prison in that area. There is concern that that would be potentially very difficult. I do not know whether the Government have in mind locations for the resettlement prisons. The figure was about 70, if I remember correctly. Have they given any thought to the position of women in that context, given the relatively small number of women’s prisons dedicated for that purpose?

By sheer coincidence, the Minister has kindly replied to a Written Question today giving me information about the home locations—he is looking puzzled; I assure him he has—of prisoners held in the north-east. The figures are quite interesting and reinforce some of the concern that I and other noble Lords have or might have about the situation. They show that 59% of young offenders have home addresses outside the north-east region and 39% inside it. So 39% of young offenders are in prison in the area where resettlement would occur but 59% are not. The 2% difference is because the data are not clear. The figures are pretty much reversed in respect of adult prisoners.

I repeat that 59% of young offenders are from outside the north-east region but are imprisoned there, while only 41% of those in the north-east are from the region. Some 39% of adults, those 21 years and over, come from outside the region, while 61% from inside. These are substantial percentages and the numbers are quite significant—289 young offenders and 2,048 adult offenders are currently in prisons other than in regions to which they would presumably be returning.

The Minister’s letter, which he may or not have read before he signed it—

[Lord McNally]

Outrageous—withdraw.

[Lord Beecham]

I am glad the Minister is prepared to do that. The letter says that the vast majority of prisoners transferred to NOMS North East Region are from adjacent areas. An adjacent area could be the north-west of England. I know that there are significant numbers of prisoners from the north-west of England in prisons in Northumberland. The north-west region runs from Cumbria to Cheshire. To say that is an adjacent region does not take us very far, especially as I suspect most of the offenders will come perhaps from the Merseyside and Manchester conurbations. That would be a reasonable inference. This is a significant number of people to be resettled somewhere nearer home and that is just from one region. How much have the Government thought through the implications of dealing with this? Have the Government given consideration not only to the numbers but the length of time during which the resettlement will take place? I raise this point because it has been raised by organisations concerned with women prisoners especially. Has it been looked at from their perspective?

Incidentally, the letter says, in a point which rather echoes the point about women prisoners and which may account for the figures for young offenders, that there are fewer establishments holding young offenders and they are on average likely to be further from their home area. How realistic is this resettlement process likely to be? It looks to me as though the north-east region is accommodating considerably more than its “fair share” of prisoners. It would be interesting to know how many north-east prisoners are housed elsewhere but I suspect that we have a surplus of accommodation in the north-east and that is not going to assist in the resettlement process. How developed are the Government’s plans? The amendment therefore seeks details and for a scheme to be set out in regulations and laid before both Houses for debate. That would be ideal but at any rate some oversight of the detail and the implications of this scheme are needed, which as I say is welcome in principle but it is difficult to see quite how it is going to work. It may be that the Government are going to take some time over this and that may be necessary, but any indications at this stage would be gratefully received. I beg to move.

Offender Rehabilitation Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 20th May 2013 Lords Chamber

[Lord McNally]

My Lords, first, I thank the noble Lord, Lord Ponsonby, for that measured response. I thought his peroration wandered into Beecham territory, but for the most part it was moderate and constructive, and for that I am most grateful. I see him as a kind of David Beckham figure, coming to dazzle us on the Front Bench and then all too soon going away again. However his participation today and, I hope, in Committee and at other stages of the Bill is now guaranteed.

It is very difficult responding to so comprehensive a debate. It is one where Governments can never win. We pilot, analyse and consult, and then we run out of steam. If we push ahead with radical ideas, we are going too fast and failing to consult. I am not quite sure how to respond to the tour de force of the noble Lord, Lord Ramsbotham. He ended on “The Tempest”, but his message was more from “Life of Brian”. He is quite sure that the Secretary of State is,

“not the Messiah, he’s a very naughty boy”.

One rather more serious point, which I make in all comradeship to both the noble Lord, Lord Ramsbotham, and my noble friend Lady Linklater, is that sometimes if a department makes any move at all, they are so precise about what is wrong that you lose all sense of whether they are supportive of at least the attempt. Of course, there are questions about so radical and innovative a policy. I will try to cover some of them in this reply and I will also look forward to a very thorough examination in Committee.

Since he was one of the last speakers and his name is at the top of my pile of notes, perhaps I may thank my noble friend Lord Bates for his intervention. It gave me a breather and he made a very important point about education. We will be bringing forward thoughts on education and its place in the youth sector, but it also has an important role to play in rehabilitation in the adult sector. It ties in with a point that is often made by the noble Lord, Lord Ramsbotham, about mentoring and the benefit of initiatives such as the Toe by Toe project, whereby literate prisoners help illiterate prisoners to master reading and writing.

I will try to cover the major points in my response and note some of the key ideas. I will follow up the idea from the noble Lord, Lord Beecham, on ex-service personnel because there is growing concern about how many of our ex-servicemen seem to end up in the criminal justice system as offenders. We will look at ideas that have worked and we will certainly follow them up.

A number of noble Lords expressed concern about whether there will be scope for small providers. We intend to put in place market stewardship arrangements so that the smaller voluntary and community sector providers can bid to be a prime provider or to be a partner. We are running a two-part £500,000 grant to support VCS organisations to overcome the barriers to participating in the rehabilitation reforms and, as has been said, this morning my right honourable friend the Deputy Prime Minister announced further funding. I should also like to follow up with my noble friend Lord Marks the idea of a chartered institute of probation officers or some such body. That is something that sits well with the idea of a National Probation Service. I have said many times from this Dispatch Box that I have great admiration for the probation service and at no time have I suggested that it is the fault of the service that we have a 56% rate of reoffending, or indeed any other percentage. The service does an excellent job. What we are doing here is not a condemnation of the probation service but an attempt to restructure provision in a way that gets us better value from the money that we are making available for rehabilitation. I take the point made by a number of noble Lords, including the noble Baronesses, Lady Howe and Lady Healy, about women. It is something that we may explore in Committee.

I will deal with some of the broader points made by the right reverend Prelate the Bishop of Newcastle later, but I do not think that ever in my political life have the words, “Public is bad, private is good”, passed my lips. It is an absurd assumption and is certainly not part of the motivation behind this Bill. However, diversity, variety and flexibility are good, and those are what we are trying to promote in what we are doing. I will deal with the matter of breach, raised by my noble friend Lady Berridge, later, but perhaps I may flag up that I have visited one of the Clink restaurants, and very good it was too. They are a real and functioning example of rehabilitation; the hospitality world is one in which the range of skills required matches well with those of prisoners.

I have noted the point made by the noble Baroness, Lady Armstrong, that the previous Government themselves examined payment by results and were none the worse for that. As we have pointed out before, much of this restructuring depends on the 2007 Act. I am not scoring points here; I just want to make the point that it has been a direction of travel for a long time in both prisons and probation because, as has been said a number of times, the private and voluntary sectors have been involved in rehabilitation for a long time. I have seen provision by St Giles Trust, Turning Point and others that demonstrates that. We want to look again at social investment bonds. As the noble Baroness said, they could and should be a major long-term part solution to some of the issues we face. However, I acknowledge her experience and take her advice about the need to find a long-term basis for such investment.

My noble friend Lord Dholakia let it out of the bag that he is my long-term mentor on criminal justice matters, and I hope that I am all the better for that. He made the important point that we should not confuse voluntary with amateur. The voluntary sector has a great deal of professionalism to give us in this area. I hope also that we can press forward on the Rehabilitation of Offenders Act 1974, and we certainly intend to do so as soon as possible.

I take on board the warning from the noble and learned Lord, Lord Woolf, that we should proceed with caution and about the danger that what we are doing will somehow legitimise and justify an inflation in short-term sentencing. I do not think that will happen. As the noble Lord, Lord Ponsonby, recognised, we are talking to magistrates and the Sentencing Council with this very much in mind. The noble and learned Lord also made the point that this kind of attempt has been made before with custody plus, and we will try to learn some of the lessons from that.

As well as raising the issue of women in prison, which I am very willing to explore further in Committee, the noble Baroness, Lady Healy, warned against setting people up to fail. I see that as a proper warning and one that we will take to heart when putting these reforms in place. I was glad that my noble friend Lady Linklater welcomed the emphasis on mentoring. She, too, expressed concerns about the probation service and mentioned that it is now 100 years old. I do not believe that we will lose the skills base through these reforms. They will be redeployed across the sector. However, I will say quite frankly that I believe that a National Probation Service along the lines that we are contemplating will have far more status and influence on policy than the service did as, if I may say, the poor relation of NOMS within the Prison Service. Under our new structure, the National Probation Service will have within NOMS direct reporting to the Secretary of State, and I think that that is an advance on what has gone before. My noble friend Lady Hamwee also welcomed mentoring, and I take to heart the importance of getting a complete buy-in to this from prison staff.

I suspect I shall run out of time for all the other issues. We are trying to give discretion to the courts when they are sentencing. Applying the provision to all offenders then setting the appropriate level of supervision is a much more practical approach than deciding at the time of sentencing not to supervise an offender and then realising too late that they actually pose a risk of reoffending and need supervision. A blanket, one-size-fits-all type of supervision will not be applied; there will be proportionality and judgment in taking this forward. The noble Lord, Lord Beecham, gave an example of somebody who has been in prison for an offence that is unlikely to be recommitted and has a minimum requirement for supervision: that is exactly what will happen.

My noble friend Lord Dholakia, the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Healy, spoke about the danger of raising the threshold for imposing custodial sentences. The Bill is focused on improving rehabilitation for those whom the court decides need to go to prison. We have already made changes to the community order in the LASPO Act and the Crime and Courts Act to ensure that sentencers have tough community sentences at their disposal. The fact remains that, as the noble Lord, Lord Ponsonby, said, some people need to go to prison, even if only for short periods. The current custodial threshold is already high. The court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that a final community sentence cannot be justified. Other matters on the details of application would be better left to be dealt with in Committee.

The noble Baroness, Lady Berridge, asked me specifically whether 14 days committal for breach activates its own 12 months of supervision. It does not: committal is the ultimate sanction for breach but the objective is to get the offender back on to the original rehabilitation programme. That also covers how we intend to extend this to 50,000 offenders and apply it with a sense of proportion in each specific case.

On the question of women, we have, through my honourable friend Helen Grant, taken on a women’s advisory board and will be taking forward proposals on female offenders. I welcome the opportunity to discuss this in Committee.

A number of noble Lords, including the right reverend Prelate the Bishop of Newcastle, the noble Lord, Lord Beecham, my noble friend Lord Dholakia and the noble Baroness, Lady Berridge, raised concerns about the participation of small charities. Our reforms will open up the probation service to a far wider range of potential providers. We want to encourage partnerships between voluntary or charitable organisations and between VCs and the private sector. In reply to the right reverend Prelate the Bishop of Newcastle about faith group involvement in rehabilitation, I recently went to Liverpool as a guest of the right reverend Prelate the Bishop of Liverpool and saw some of the projects being run there. The noble Baroness, Lady Healy, may be interested to know of Adelaide House, a very interesting project for the resettlement of women offenders. I want to put on record my appreciation of all the faith groups, which already have a network and a committed flock who readily make themselves available for rehabilitation work. That is something we want to work with and build on. In St Albans and Norwich, which I have visited in the past couple of years, the cathedrals are being used as centres for getting the various groups together on projects that work.

Lest I get into trouble for going on too long, I will just deal with the question of payment by results. Our payment mechanisms will ensure that providers have to work successfully with all offenders, including the most prolific and hardest to help, if they are to be paid in full. There will be a fixed fee for service, ensuring that they deliver the sentence requirements, and licence conditions for every offender. The remainder of their payment will be dependent on the reductions they make in reoffending. To be paid in full, providers will need to achieve an agreed reduction in both the number of offenders who go on to reoffend and the total number of offences committed by those in their cohort. So they cannot just focus on the easy wins; they will have to work with the most prolific offenders and keep working with those offenders who have already reoffended. We will be developing the details of our payment mechanism in discussions with providers and practitioners. I am sure that will be developed in Committee.

[Lord Beecham]

Could the noble Lord clarify whether it is the intention to bring those details back to the House or to Parliament for approval? In what way will there be parliamentary scrutiny of the detail?

[Lord McNally]

Those are matters of contract with the providers, but the noble Lord can probe me further on that in Committee, when I will try to give more specific answers.

It does not surprise me, given the speakers list today and the range of experience and expertise on view, that a lot of questions have been asked. I hope we can delve deeper into this in Committee. I do not accept that this is not worth pursuing. Most people have welcomed the objectives and, as I have told the House before, we must accept that, in these straitened times, the department cannot call on other resources to fund ambitious programmes. However, we are spending just less than £1 billion on the wide range of rehabilitation services. We have heard about holistic approaches and making sure that we have buy-in from other departments and from local government; these are all important to its success and I passionately believe it is worth trying. I understand the dangers but, in the end, you can spot so many dangers that you are paralysed. I do not believe that is the right approach. We should press ahead with this, let this House use its expertise to examine it in detail and see if we can put in place a piece of legislation that will give the framework to bring in ideas, flexibility, innovation and value for money in an area where there is a great deal of common agreement about objectives, as today’s debate has shown. As we take this Bill forward, our job is to see if we can tease out the practicalities so that it is also effective. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Prisoners: Indeterminate Sentences

Debate between Lord McNally and Lord Beecham

Tuesday 23rd April 2013 Lords Chamber

[Lord McNally]

I understand that almost all IPP prisoners now have a managed programme to help them prepare for release. That should be part of sentence planning. But, again, I freely acknowledge that in some cases prisoners have been moved for other reasons and then find that they cannot complete the relevant courses. We are trying as best we can to iron out of the system what the noble Lord referred to as a Catch-22 situation so that prisoners can qualify, but to leave with the Parole Board the overriding assessment of whether they are suitable for release or whether a risk remains.

[Lord Beecham]

My Lords, what is the Government’s estimate of the number of prisoners to whom the judgment in the European Court of Human Rights case of James, Wells and Lee v UK applies? Have the Government estimated the cost of providing sufficient resources to comply with the requirement to ensure that prisoners have an opportunity to progress and to be properly assessed for release on licence?

[Lord McNally]

I am not sure of the number of prisoners to whom the judgment applies, but cases are being taken. It may be of interest to hear that two of the three prisoners involved in that case are now back in prison due to breaching their terms. We are being very careful to make sure that the system is flexible enough and effective enough to allow prisoners to earn—that is the reality of it—their release. However, we have to consider this issue in the context of prisoners who were given this sentence, when it existed, because they posed a threat to the community. It is for the Parole Board to assess whether they are fit for release.

Civil Legal Aid (Procedure) Regulations 2012

Debate between Lord McNally and Lord Beecham

Wednesday 27th March 2013 Lords Chamber

[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.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 25th March 2013 Lords Chamber

[Lord Beecham]

My Lords, I join the noble Baroness in welcoming the Government’s moves to tighten up the arrangements for bailiffs. Like her, however, I regret that they have failed to take the ultimate step of establishing a clear and relatively straightforward regulatory system. I am slightly puzzled by some aspects of their response to the consultation. For example, in paragraph 18 of their response, the Government say that they will implement Section 64 of the Act and “produce regulations” about the regulation of enforcement agents, which is a somewhat circuitous expression. Nor is it entirely clear where that would be heading.

Equally, the response goes on to say at paragraph 134 that the Government,

“will continue to work with stakeholders from the enforcement and advice sectors in developing the content of the regulations and will also work with HM Courts and Tribunals Service and the judiciary on the court procedure”.

I take it that that means that, ultimately, the Government will produce regulations to be approved by both Houses. Perhaps the noble Lord would be able to confirm that. It is clear, as the Minister has pointed out, that much of the work—or, any rate, the function—of the industry is directed towards recovering sums due to local or central government, hence the involvement of the Local Government Ombudsman. That work is likely to be enhanced considerably as councils seek to recover, if it is economical to do so, the likely shortfall in the collection of council tax now that a significant cut has been made in council tax support, and many people will now be called upon to pay council tax who have not hitherto done so, in rather small amounts. That may make collection uneconomic.

Be that as it may, and quite taking the point about the Local Government Ombudsman’s position, would it not be sensible, if we are thinking in terms of sensible regulation without offering competing avenues for this, for the Local Government Ombudsman’s responsibilities to be widened so that he can undertake that regulatory role for the whole system? Why not? Hopefully, local authorities, either singly or collectively, will in any case employ staff directly rather than contract out. It is in the contracting out of the service that we see so many of the problems.

It is interesting that the advice sector did not agree with the not unexpected majority of the enforcement sector and creditors in saying that the existing complaints process was sufficient and did not require any further government intervention. The advice sector thought that the processes,

“have proved to be ineffective or inadequate”.

Given the Government’s propensity to rely on the voluntary sector to make good the damage inflicted upon advice services generally—the withdrawal of legal aid and legal advice, for example—one might have thought that they would pay rather more attention to the advice of the sector in this sensitive area. As the Minister has, in fairness, readily recognised, there have been too many instances of abuse for us to be comfortable with the present position.

Finally, the Government propose a rather curious process of review at one, three and five-year intervals. It is not clear quite what form that would take, but I ask the Minister for an assurance that if it is seen that there is no significant improvement in how the system is working, they will revert to the concept not merely of support, advice and certification but of a proper regulatory system to which people can have ready and inexpensive access.

[Lord McNally]

My Lords, I will re-emphasise why we are not introducing an independent regulator. The legislative changes that we are making to protect people in debt from aggressive bailiffs together with the new laws and mandatory training and certification scheme, which bailiffs must pass before going into business, will provide enough protection against aggressive bailiffs. Bailiffs who do not follow the rules will be barred from the industry. We will also clarify the complaints process so that debtors know how to seek redress and what the responsibility of creditors and enforcements agents are.

As I have explained, in the process, the appropriate regulator in each of the areas where bailiffs are used will be able to be appealed to. We mentioned this small degree of commercial debt—less than 1%—and I would be happy to receive any representation from either the CBI or the Federation of Small Businesses if they thought that this was a genuine loophole causing a real problem.

Every individual will have access to an appropriate complainant authority. As the noble Baroness pointed out, we have indicated that we are looking for something like a three-month training programme; it will not just be a tick-box exercise. We are looking at other parts of the forest, as it were, to see whether there are training modules and practices that we can readily adapt. I confirm that the local government ombudsman will have responsibility for private bailiffs when they are acting for local authorities.

The noble Baroness rightly raised the problems of dealing with people who may have some difficulties with mental capacity. We would hope that in the training will come a clear responsibility to recognise and assess such situations. Where they identify that a vulnerable person is involved, they will refer back to the relevant authority to further instructions and, where necessary, bring in other assistance to deal with the situation.

As I have said, we are developing training that we consider a minimum requirement. We have not yet been able to gauge exactly the length of time that the training would take. However, we are clear that, at a minimum, bailiffs will need to understand the role that they play, the law that governs their powers, the practice of taking control of goods, the fees that they can charge and, as I have said, specific training to deal with vulnerable people.

On whether the system will allow complaints against bailiff firms as well as individuals, most complaints about bailiff companies relate to the fees charged by their bailiffs, the type of goods seized and the ways in which they were seized. All these issues will be dealt with under the new regulations and will be subject to the means of redress. The behaviour of individual bailiffs on the doorstep will be regulated through the certification system. Poor behaviour can be addressed by the removal of a certificate. We are working with the advice sector to identify any complaints that would fall outside the regulation. All bailiffs will have to be certified, and I can confirm that training will be independently accredited.

We will bring forward the regulations by negative resolution. The regulations have already been subject to a full and open consultation. Comments were invited as part of this process and were included with the consultation paper. Officials are currently working with stakeholder groups to refine the regulations, and we plan to make them available by the summer. As set out in the Tribunals, Courts and Enforcement Act 2007, the regulation will be subject to the negative procedure for statutory instruments.

As I said, I believe that what has been put forward in a way is greatly to the credit of the noble Baroness, Lady Meacher, who has championed these ideas through the House. I hope she recognises a victory when she sees one. I certainly hope, as I said before, that the House will agree to Amendments 5, 6 and 31.

Prisons: New Prisons

Debate between Lord McNally and Lord Beecham

Wednesday 20th March 2013 Lords Chamber

[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.

Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013

Debate between Lord McNally and Lord Beecham

Tuesday 12th March 2013 Grand Committee

[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

Debate between Lord McNally and Lord Beecham

Tuesday 12th March 2013 Grand Committee

[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.

--- Later in debate ---

[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.

European Convention on Human Rights

Debate between Lord McNally and Lord Beecham

Thursday 7th March 2013 Lords Chamber

[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.

Damages-Based Agreements Regulations 2013

Debate between Lord McNally and Lord Beecham

Tuesday 26th February 2013 Grand Committee

[Lord Beecham]

I am grateful to the noble Lord for making explicit what was certainly implicit in what he and I were saying. Access to justice is certainly the core argument here. I should perhaps also have declared an interest in that from time to time as we have discussed these matters I have put in time as a now unpaid consultant with the firm of solicitors in which I was formerly a partner.

[Lord McNally]

My Lords, as a non-lawyer—perhaps the only one in the Room—I fully appreciate that the noble Lords’ interventions were about access to justice. As I have told the noble Lord, Lord Beecham, on earlier occasions, my legal qualifications rest on one of nine papers that I did for part one of my degree on English legal institutions. I remember champerty and maintenance from that paper. It came as quite a shock to me to find, in the process of the Bill, that not only was champerty not outlawed, it was now to become legal. But there we are—such is the passage of time.

--- Later in debate ---

[Lord Beecham]

He is actually an older man.

[Lord McNally]

Actually, I knew that. As Harold Wilson said when he retired and Jim Callaghan succeeded him, “I have made way for an older man”.

I take the point made by the noble Lord, Lord Phillips, but let me be blunt. I am always suspicious of Ministers who at any time rest too much on a report, no matter how learned. I do not rest the case for the 25% cap on that being Lord Justice Jackson’s original recommendation, although indeed it was. A sharp-eyed lawyer would say that the noble Lord’s quote about Lord Justice Jackson did not endorse the counterview but simply said that it had merit, which is not the same as advocating that the Government change their policy. Even if it were, this is the Government’s policy. It is the right policy because it protects the future earnings and the future cover for victims in these cases. It remains our policy on that merit, and we are willing to defend it on that basis.

I understand the point made by the noble Lord, Lord Beecham, about speed. I pointed out that very little of what we are doing is entirely new. We fully recognise that at this time there is a need for ability, nimbleness and fleetness of foot in all parts of the legal profession, if we are to take advantage of the changes that are going through. We are not persuaded that the timescales we have set are unreasonable, and we will not be deferred from the course that we have set. We have taken account of reasons for delay regarding mesothelioma and privacy, which I quoted. However, these orders will go through to take account of the fact that LASPO comes into effect on 1 April 2013.

Perhaps I might deal with a number of the specific questions that the noble Lord, Lord Beecham, raised. He was very correct to raise the issue of the American experience in DBAs. I also met the organisation that came over to present its case. I left that meeting with some of his concerns about what this might bring into our legal system. The noble Lord’s description of hedge funds for legal claims is something that we are very conscious of. What we have decided so far is to keep the matter under review. That phrase can often hide weasel words and weasel intent, but we want to see just how much this is going to become a factor in our legal system, while making sure that some of the warning signs that the noble Lord has quite legitimately raised are on the radar of Ministers as well. We will keep this matter closely under review.

The noble Lord raised the issue of VAT on the 25% cap. The 25% cap on success fees is as recommended by Lord Justice Jackson. Including VAT on the success fee on lawyers’ fees within the cap will provide further protection for the claimant’s damages and add certainty for the claimant as to the likely deduction from their damages. This approach is also consistent with the existing cap of 35%, inclusive of VAT, on payments to be made from damages in respect of DBAs in employment matters. The noble Lord also asked about the indemnity principle. DBAs are an alternative method of funding and it would be for solicitors to advise their clients on the most appropriate method of funding according to the circumstances of each case. He also mentioned there being one set of regulations. There is one set of regulations covering both civil litigation and employment cases, as recommended by the Civil Justice Council. We have listened to the concerns of the Law Society and others that there should not be too much regulation in respect of civil litigation in these instruments. This is because failure to comply with the provisions in the instruments would make the agreements unenforceable. As I have said, lawyers are properly regulated in any event.

The noble Lord asked whether the cost of ATE insurance is within or outside the 25% cap. This is an expense and is therefore outside the cap. On why DBA regulations do not contain requirements on termination for civil litigation, as in employment cases, the DBA regulations of 2010 made provisions for employment cases which can be taken forward by non-lawyers. Detailed safeguards need to be built in as a result. Civil litigation can be conducted only by lawyers, who are subject to their own professional regulations.

I think that that covers most of the issues. If not, perhaps I might say to the noble Lord that I welcome the thoroughness with which he has examined these regulations and, as I say, if I have not covered the questions in precisely the detail that I should have done I will make sure that a suitable letter is lodged in the Library of the House. I nevertheless think that the timetable that we have set, the consultation that we have undertaken and the changes that we have made after that consultation, with our having listened to the Bar Council, the Law Society and other interested parties, make the regulations fit for purpose. I therefore recommend them to the Committee.

--- Later in debate ---

[Lord Beecham]

It is a clear answer, but there does not seem to be a particular rationale for excluding defendants from this process. If they secure the retention of a sum of money claimed under the agreement, why should the DBA not be available to them? To confine it to claimants seems too narrow a concept. If the intention of the Government, as it clearly is, is to use the DBA as an alternative method of financing, it should be available to both sides because nobody is being compelled to undertake a DBA. That still requires some further thought.

[Lord McNally]

I will certainly give it further thought, but the question was whether the regulations as presently set out debar the use of DBAs by defendants. The answer is yes. I will reflect and put those further reflections in the letter.

Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013

Debate between Lord McNally and Lord Beecham

Tuesday 26th February 2013 Grand Committee

[Lord Beecham]

I will deal first with the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013. Again, I have a series of questions that arise partly from the drafting and partly from my ignorance. Again, I trust that the Minister will be generous enough to reply, if not today then subsequently.

I begin with Regulation 9, which deals with the withdrawal of determinations by the court and prescribes that the court before which criminal proceedings are listed may withdraw determinations in certain circumstances. I draw attention in particular to Regulation 9(c), where a reason would be that the provider named in the representation order that recorded the original determination declines to continue to represent the individual. The previous two conditions I can quite understand; first, the individual declines to accept the determination terms that he was offered—arguably, that is not unreasonable—and, secondly, the individual requests that the determination is withdrawn, which is also reasonable. However, I do not understand why, if the provider named in the representation order declines to continue to represent the individual, the determination should be withdrawn unless that determination relates specifically to that advocate. If that is the intention, it should perhaps be clearer, but if it is broader than that it would presumably leave the party unrepresented. Perhaps that needs some clarification.

Regulation 11 says:

“The … court may make a determination … only if it has considered an application made in accordance with”,

the subsequent paragraph. To comply with that, the application must,

“be made by the individual seeking the determination”—

that is obviously straightforward—

“be in writing; and … specify what the relevant court is being asked to determine and the grounds upon which it is being asked to do so”.

My question relates to whether that process is covered by legal aid or advice, or whether the individual is simply left to make his own representations. For some defendants, that could potentially be a matter of considerable difficulty. What is the process to facilitate the making of an application by an individual in those circumstances?

Regulation 12 identifies the right to select a provider, except for a number of categories—or, rather, the other way round; it limits the choice except for a number of categories. The first one is that,

“the provider … is employed by the Lord Chancellor to provide criminal legal aid”.

I find it a curious word to use, that the Lord Chancellor purports to “employ” advocates on behalf of a defendant. To me, that has connotations that might be a little invidious, bearing in mind the recent decision of the courts that recorders and part-time judges are deemed to be employed by the Lord Chancellor and therefore are required to be included in the pension scheme. If employment is to be used in this context, might that not also lead to some potential complications in relation to the status of people “employed” by the Lord Chancellor and possibly even lead to them being included in some sort of governmental pension scheme? The wording needs some explanation.

Regulation 13 deals with the position where there are co-defendants. Under these circumstances, the regulations prescribe that,

“the right of an individual … does not include the right to select a provider who is not also instructed by the individual’s co-defendant”—

in other words, to have two advocates as opposed to one—

“unless the … court or the Director determines that … there is a conflict of interest between the individual and that co-defendant; or … there is likely to be a conflict of interest”.

Again, I ask whether there is any process of appeal against such a decision. After all, the question of whether a conflict of interest might exist would not necessarily be straightforward. What is the process for determining in these circumstances whether there is likely to be a conflict?

Curiously, the regulation then goes on to provide that Regulation 13(1), the basic provision about instructing co-defendants,

“does not apply where the provider selected by the individual is an advocate”.

I simply do not understand what that means. This may be a failing on my part, but I do not understand the purpose of that provision.

Finally, I come to Regulation 16 which deals with criminal proceedings before a magistrates’ court. With a limitation to which I will refer in a moment, on proceedings before a magistrates’ court,

“the Act does not include a right to select an advocate”.

I do not know why that should be the case—I do not know whether it is a new or an existing provision—but it would seem to require some explanation. Why should a defendant not have the right to select an advocate?

The proviso in the regulation says:

“The relevant court may determine that the individual can select an advocate”,

on two conditions. The first is that,

“the proceedings relate to an extradition hearing … or an indictable offence”;

and the second that the,

“court determines that because there are circumstances which make the proceedings unusually grave or difficult, representation by an advocate would be desirable”.

One would have thought that in any extradition proceedings, and on most indictable offences, it would be almost a matter of course that the appointment of an advocate would be desirable. What are the circumstances in which it is thought that it would be inappropriate for an advocate to be selected by the defendant? By definition, these look to be significant matters. Again, what is the procedure to appeal any such decision? Supposing the court was to find that, in its view, these proceedings were not,

“unusually grave or difficult”.

That is very largely a subjective judgment. What is the purpose of this and why are the Government going to these lengths to put barriers in the way of a defendant selecting an advocate?

Happily, I have much less to say about the other two sets of regulations. Indeed, I have nothing to say on one set at all. However, in respect of the Civil Legal Aid (Costs) Regulations, there is a point to question. First, I noticed that there was no consultation on these regulations, which is a slight surprise—although it is fair to say that I think no specific question was asked in response to the original consultation. Nevertheless, I would have thought it sensible to have invited comment on the draft regulations.

Finally, we come back to the matter of timing. Paragraph 9 of the Explanatory Memorandum says that guidance is,

“not being prepared specifically on this instrument”,

but that:

“A programme of training and guidance is being prepared by the Legal Services Commission to support the transition to the new arrangements. This will be … available to legal aid providers ahead of the commencement of the Act on 1 April 2013”.

What exactly has happened about this? To what extent has training taken place and has it been in conjunction with the Bar Council and the Law Society? Will the profession—and, for that matter, the courts—be ready as of 1 April 2013 to deal with these matters? What training and support has been given to the courts, especially the magistrates’ courts, to deal with the new regime?

[Lord McNally]

My Lords, again, I am extremely grateful to the noble Lord, Lord Beecham, for what he quite rightly termed a cross-examination. I will try my best to cover the points he raised, along with the same health warning that I gave last time, which is that if I find on reflection that I have not fully covered the point he raised, I will write to him and make that letter available in the Library of the House and to interested parties.

On the withdrawal of a determination under Regulation 9(c), the relationship between a defendant and a solicitor could break down, for example, so legal aid might be withdrawn but that would not leave the party unrepresented. They could apply for transfer to a new firm. Regulation 11(2)(c) applies, for example, where an individual seeks a QC or two advocates, so would already have legal aid for solicitors and a junior advocate to assist. The noble Lord also asked about determinations by a court under Section 16 of the Act and pointed out that there seem to be very limited circumstances in which the court may grant representation.

The framework laid out in the Access to Justice Act 1999 is different from that laid out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under the Access to Justice Act, the default position is that the court can grant representation. However, with the rollout of means tests to magistrates’ courts and later to Crown Court, the circumstances in which the court can grant representation have gradually reduced. The responsibility for granting representation has therefore gradually passed to the Legal Services Commission—although, in practice, Her Majesty’s Courts and Tribunals Service staff make the decision. The Criminal Defence Services (General) (No. 2) Regulations 2001 reflect that position. LASPO reflects that shift, and the default position is that it is for the Director of Legal Aid Casework to decide whether to grant representation. The court may do so only when expressly authorised by regulations. The regulations set out the limited circumstances in which a court may do so—for example, where an urgent determination is required in a case of contempt of court.

The noble Lord, Lord Beecham, queried the use of the term “employed”—people being employed by the Lord Chancellor. That is the same language as in the current regulation, and covers the staff of the Public Defender Service, currently operated by the LSC, who will be employed by the Lord Chancellor under LASPO. Is there a process of appeal for conflicts of interests under the regulations? No, there are no provisions for appeal, but the person concerned could renew the application. As to why there has been no consultation on costs of regulation, as the draft regulations substantially replicate existing cost regulations, there is no need for consultation on the precise terms. The principles are well known, used and understood.

We are confident that the programme of training and guidelines will be rolled out in advance of implementation. On the question of representation in magistrates’ courts, I explained the situation under Regulation 16. The only challenge will be via judicial review. Our experience over the past 10 years is that existing provisions work well. Both LASPO and the current thinking of the Secretary of State and Lord Chancellor indicate a move on representation via legal aid.

The Secretary of State for Justice has asked whether access to criminal legal aid is being given in a way that provides the right balance between the needs of justice and the needs of the public purse. The Ministry of Justice has begun work on how we might find a better balance between costs and the needs of justice, and we will bring forward proposals and changes in due course. In the mean time, though, as I say, these regulations very much reflect present position, with the minor shifts that were involved in LASPO. In those circumstances, I commend them to the Committee.

Criminal Procedure Policy: EUC Report

Debate between Lord McNally and Lord Beecham

Monday 4th February 2013 Grand Committee

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

My Lords, clearly the noble Lord, Lord Beecham, had got his Monday morning grumpy hat on in his final tirade against the Government. I will come back to the points that he made in a minute.

I know a little about the House’s European Union Committee and I pay tribute to it. This report is in the great tradition of a committee at this end of the building which has always produced evidence-based reports in a considered way. This inquiry has been helpful in that

I concede one point to the noble Lord, Lord Beecham: the response and debate timetable seems to be leisurely, to put it mildly. I am not sure who takes the blame for that. Nevertheless, we have had the benefit of a good report.

I make no complaint that a number of references have been made to the Government’s decision to adopt an opt-out/opt-in approach to the 2014 decision. I shall take up the invitation of the noble Lord, Lord Bowness, not to pre-empt that debate. I am aware that Sub-Committees E and F of the European Union Committee are looking at this matter and I look forward to the report. I suspect that it will be in the great tradition of the European Union Committee in terms of an evidence-based analysis and wise recommendations. I shall not pre-empt that debate today.

It was interesting that the contributions to the debate endorsed the findings of the report that co-operation in this area is not the great danger to our beloved criminal justice system that might be suggested. The noble Baroness, Lady O’Loan, made the point that, in practice, it has worked extremely well and to the benefit of British citizens to have a policy of co-operation and of trying to set minimum standards. I understand the point of the noble Lord, Lord Hodgson, about national amour propre. I always find in our papers there is always scepticism that any country could have a justice system as fair as ours and that foreigners are not to be trusted with such matters. However, the more serious reality is that we have different forms of systems and that that sometimes makes it difficult to get complete cohesion. However, I take the point of the noble Lord, Lord Hodgson, that it is important that we carry public opinion and understanding with us on these matters.

A number of references have been made to the European arrest warrant. Again it is a matter of balance. The noble Baroness, Lady O’Loan, made a number of telling points about the effectiveness of the European arrest warrant and the fact that it is an important weapon in the armoury against organised crime, cross-border crime and other matters in what the noble Lord, Lord Maclennan, referred to as an increasingly mobile continent.

However, I do not think that it is fair to say that we have taken a negative view on that. We have pointed out, and a number of contributors have raised the fact, that there are issues about proportionality, dual-criminality and pre-trail detention that we wanted to discuss to try to get the arrest warrant improved. That has been our approach. The Home Secretary has responsibility for the European arrest warrant and it has been considered as part of the Scott Baker review. The Government’s response to that review is to take the opportunity of the 2014 opt-out decision to work with the European Commission and other member states to reform the European arrest warrant and to improve its operation.

The noble Lord, Lord Maclennan, warned and underlined that, in these areas, we cannot have complete harmonisation and that the case-by-case approach that the Government have taken has been right but that EU legislation adds value. My experience in the Ministry of Justice over the past two and a half years, as the report itself reflects, is that we have taken a very pragmatic and positive view in decisions in this area. The idea that somehow we were sitting out European co-operation in this area simply is not true.

The noble Lord, Lord Hodgson, asked whether we felt that existing limitations are sufficient to protect the criminal justice systems of member states. We believe that they are. There are a number of safeguards in the treaty to protect the criminal justice system of member states, including the existence of the emergency brake. The UK and Ireland have the additional safeguard of the opt-in. We agree that it is a difficult issue; that is why we scrutinise any new proposals to ensure the appropriate balance. Again, I take on board the noble Lord's argument that we must make sure that EU theory and its practice on the ground match up.

On the question of the directive on access to lawyers, it is too early to say what our final decision will be. We would want to consult Parliament were we minded to opt in and a series of further trialogue meetings is scheduled to take place in the next few months. However, we are participating in the negotiations. If the Government are satisfied that the final text represents an appropriate balance between the rights of defendants and the wider interests of justice, we will give serious consideration to applying an opt-in to it. We will consult Parliament about that before any decision is made.

The noble Lord, Lord Beecham, asked whether there was an assumption that UK citizens resident abroad could not benefit from these measures. The right should be afforded to all EU citizens resident in the relevant member state. He also asked what progress has been made on the victim directive. The directive was adopted on 4 October 2012 and is due to be implemented in 2015. The directive is aligned with the aims and objectives of our domestic criminal justice policies to ensure that the needs of the victim are put first.

[Lord Beecham]

Can the noble Lord enlighten me and other noble Lords as to why such a long time has elapsed between adopting the directive and implementing it? There may be a good reason for it but it would be interesting to hear what it is.

[Lord McNally]

No, I cannot give an explanation, but I will write to the noble Lord about that.

On the implementation of the European supervision order, we take our international obligations seriously and have implemented the vast majority of the measures, subject to the 2014 decision. Any further implementation of these measures will be considered on a case-by-case basis as part of the wider 2014 decision. In practice, the European supervision order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again.

The Government welcome the report. As I said, it shows the committee’s practice of employing detailed scrutiny and careful analysis. Criminal procedural rights reflect long traditions which have been developed carefully and with close consideration by both courts and Parliament, and now the devolved Assemblies. They reflect matters of considerable public policy concern, ensuring that offences can be properly and effectively investigated and prosecuted and that criminal proceedings are fair.

A number of safeguards are built into the treaty to ensure that the differing legal traditions of member states are respected. In addition, the UK opt-in applies in this area. We think that, in principle, minimum rules concerning the rights of individuals in certain areas of criminal procedure and the rights of victims of crime can help to facilitate judicial co-operation and mutual recognition—a point made by my noble friend Lord Maclennan. These measures are intended to build greater trust among the competent authorities of the EU member states which are charged with acting on decisions made in other member states by giving them greater confidence that the decisions were made against a background of minimum standards.

In order to ensure that all legislation in this area is appropriate and effective, we think that it is important that EU legislation is brought forward only in accordance with the treaties; where there is a convincing evidence-base for the need for such legislation; and where it is a proportionate response to an identified problem. This is an area in which there has been progress within the EU in recent years. The criminal procedural rights road map was agreed at the end of 2009 and subsequent legislative proposals have been brought forward by the European Commission. Furthermore, the Budapest road map, agreed in June last year, focuses on strengthening the rights and protection of victims of crime. So far, the Commission has brought forward six legislative proposals in this area and four directives have been adopted. We expect up to three further instruments to be proposed this year.

As the committee notes in its report, the UK already has a high standard of criminal procedural rights. This has been noted by the Commission, which has taken inspiration from our systems and procedures. The directive on the right to information clearly draws upon the PACE notice of rights and entitlements provided to suspects in England, Wales and Northern Ireland. The directive on the rights of victims of crime was also inspired by our practice. We have found that we can participate in most proposals in this area without having to make substantial changes to UK law and practices. The changes that we need to make to implement the victims directive are largely aligned to our domestic reform objectives—that the needs of victims are put first across the criminal justice system. We welcome the committee’s consideration of the potential added value of EU legislation in this area. The committee notes that in certain areas the EU legislation can be of real practical benefit to UK nationals travelling abroad if they become subject to the criminal justice systems of other member states, either as victims or as suspects. My noble friend Lord Maclennan and the noble Baroness, Lady O’Loan, made that point.

We also welcome the committee’s examination of the potential disadvantages of measures in this area: namely, the disruption to diverse and sensitive national criminal law systems. The Government have set out our approach to proposals for further EU legislation in the justice and home affairs area, including criminal procedural law, in the coalition agreement. The Government approach proposals on a case-by-case basis with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. This approach has been applied in respect of all criminal justice measures that have been brought forward since 2010 and we have opted in to all the criminal instruments in this area.

As I said at the very beginning, this has been an extremely useful debate on the basis of a very helpful report. Despite the rather intemperate rant of the noble Lord, Lord Beecham, at the end of his remarks, I think that the way in which we have gone about these areas has been pragmatic and analysis-based—where the Government have been more in keeping with the traditions of your Lordships’ European Union Committee than the noble Lord suggested. We have a good practical record. Where we have questioned, looked for amendments or waited before making a final decision, those actions have been based on good policy grounds, not on any kind of ideological motivation or hostility to the process. In that respect, I look forward to further work with the European Union Committee.

Charging Orders (Orders for Sale: Financial Thresholds) Regulations 2012

Debate between Lord McNally and Lord Beecham

Tuesday 8th January 2013 Grand Committee

[Lord McNally]

My Lords, I am very grateful to the noble Lord, Lord Beecham, for that constructive response. I know from our exchanges during the Crime and Courts Bill of his long-standing interest in this area and I understand why he continues to probe on the matter. The Government remain committed to providing more protection for debtors and we are taking appropriate action to ensure that that happens. When we debated this on the Floor of the House, and again today, the noble Lord pointed out that the coalition agreement talked about a £25,000 limit and we now talk of £1,000. I suppose that the honest answer is that that was the outcome of the consultation. We now feel that the balance of what we wanted to do is better met by the guideline of £1,000 rather than £25,000, not least because we were advised that the higher limit could steer creditors more in the direction of bankruptcy solutions, with the impact that I indicated on house ownership, rather than a settlement under these regulations.

We were also very much influenced by the judiciary, which believes that a very low threshold, with a great deal of judicial discretion, provides a far more guaranteed protection for the creditor than the protection afforded by a higher level—

[Lord Beecham]

For the debtor.

[Lord McNally]

For the debtor, yes; I am sorry.

With these things it is always a matter of judgment. The judgment that we have come to, and the level we have set it at, is the result of consultation, with the aim of striking a right and proportionate balance that will give power and flexibility to the judiciary and a degree of protection for the lower levels of debt.

The noble Lord asked about early enforcement of parts of the Tribunals, Courts and Enforcement Act 2007. Following the Solving Disputes consultation paper we implemented Section 93 of the TCE Act. It closes an existing loophole, providing a greater degree of security to creditors and encouraging debtors who are in financial trouble to make more reasonable yet affordable offers to pay.

The Government consulted on introducing this section in 2010 in their Solving Disputes in the County Courts paper. Some 74% of respondents supported its introduction, arguing that it offers protection both for creditors, for whom a charging order is often the only effective long-term solution to recovering a liability, and for the debtor. By commencing Section 93 of the Act we have given creditors a certain ability to convert unsecured loans to secured loans. I am sorry—I had better clarify that. One of the criticisms that has been made is that we have given creditors the ability to convert unsecured loans to secured loans by extending the use of charging orders in this way. We do not believe that that is true. Charging orders are used to secure an unpaid judgment debt, not a loan. Legitimate judgment creditors who have obtained a valid judgment through the courts should have the right to enforce the judgment by the most appropriate means available.

--- Later in debate ---

[Lord Beecham]

My Lords, I would be grateful if the Minister could clarify a couple of matters. He referred to the order allowing charging orders to be applied for, but is he aware that under the regulations enacted last October it would be possible to do that without the debtor having at that stage defaulted? That would seem to convert an unsecured loan into a secured one.

My second question relates to responses. Am I right in thinking that the balance of responses reflects the fact that most of those responding were creditors rather than debtors, their representatives or organisations interested on behalf of debtors?

[Lord McNally]

My Lords, the balance reflected the interests of the responders. The noble Lord is quite right: the creditors had one set of priorities and those speaking out of concern for debtors had others. That is the nature of consultations, as the noble Lord will be aware. I also pray in aid the strong view of the judiciary that it wants to retain as much judicial discretion as possible. In my remarks I listed the clear considerations that a judge takes and the fact that these matters come before a judge.

On the issue of whether it is pre-emptive, as it were, under the measures that we took last October, as I explained, it gives debtors who are in financial trouble the opportunity to make more reasonable and affordable offers to pay. The noble Lord appears to be saying that adjustments can be made only after disaster has struck, but that is not my reading. If I am not right in my interpretation I will write to the noble Lord. However, it seems to me that it provides an opportunity to intervene in a constructive way when people are running into difficulty.

[Lord Beecham]

My Lords, I am grateful to the Minister. However, as I understand it, the order does not require the debtor to be in any difficulty or to have made any default at all before the charging order can be applied for. That does not mean, of course, that the order for sale would automatically follow, but it is a precursor to that and can arise even before any default has taken place. We are unable to take this much further today, but I invite the Minister to look at the situation in due course.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 18th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I raised the issue of bailiffs at Second Reading. I followed it up with a Written Question which asked when the Government would respond to consultation. I was told, as I have reminded the House before, that it would be some time in the autumn. Autumn is now safely past us and we do not yet have a response. I spoke in Committee and subscribed to the amendment moved by the noble Baroness, Lady Meacher, on Report. I would have been very happy to subscribe to today’s amendment had it not been for the fact that there were already four signatures on it, which would have left me as a fifth wheel on the coach of the noble Baroness.

I strongly support her amendment because it is important to get some movement here. As my noble friend Lady Smith has pointed out, the Government have introduced three substantial new proposals to the Bill at a late stage. Two of them were at least subject to the recommitment procedure, and followed consultations—consultations, incidentally, which began after the consultation closed on the whole issue of bailiffs, on which the Government consulted last winter and spring. The third amendment, which deals with self-defence, was of course tabled two days before Report, with no apparent consultation with anybody at all beforehand.

I entirely subscribe to and share the views of noble Lords who believe that the Minister is absolutely genuine in his concern about this matter, but why has it taken his department so long to consult all relevant bodies? There was an extensive consultation period; seven months have now passed. What further consultations, if any, have taken place—that is a legitimate question to ask—and with what result? The Minister indicated, in answer to previous questions, that he hoped that there would be a response by the end of November. We are now past that date, and there is still nothing to be seen. As the noble Lord, Lord Kirkwood, has pointed out, time is not running out completely, but it is running out fast against a particular deadline.

Incidentally, I hope that the noble Lord, Lord Kirkwood, will consider another aspect of the coalition agreement, to which I have made previous reference during the passage of this Bill, namely the part of that agreement which indicated that the Government would introduce a threshold of £25,000, below which it would not be possible to obtain charging orders. On the first day back in January we will have in Grand Committee regulations prescribing a £1,000, instead of a £25,000, threshold. No doubt we will have an opportunity to debate that on a subsequent occasion.

In respect of this matter, the noble Baroness’s amendment is, as she put it, almost the least that could be done to get some progress quickly on this matter. If the Government do not accede to this request and if we are looking to another Bill to come forward—I do not know how many Ministry of Justice Bills we can expect to see in the next Session of Parliament—it clearly will take a long time. In the mean time, as other noble Lords have pointed out, there will be the potential for substantial suffering on the part of far too many people—not merely adults because children would be affected as well, including children in the most vulnerable and difficult of circumstances. It is simply unforgiveable that the department has let down the Minister, which is the fair way to put it, in progressing this matter. I hope that the noble Lord will feel able to accept the noble Baroness’s amendment. If not, I certainly shall advise my colleagues on these Benches to join her in the Lobby.

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

My Lords, perhaps it will at least allow the Whips to send out the necessary message that I can make no commitment to the noble Baroness beyond what I have said in meetings and at various stages of this Bill. I will briefly try to explain why not. I have listened to this debate and I have listened to the concern of the House. Yes, the House can send messages but, in truth, the matter is being dealt with. I note that my noble friend Lord Lucas said that the matter had been being discussed for the past 33 years and that the noble Baroness, Lady Meacher, referred to merely the past 20 years. Therefore, I am not too apologetic that the department is taking a little time to take this matter forward.

The consultation paper sets out the objectives, including providing more protection against aggressive bailiffs while spelling out the need for effective enforcement; a fair, transparent and sustainable costs regime that provides adequate remuneration; and minimising excessive regulation on business while ensuring effective protection for the vulnerable. That is the balance that we are trying to get right.

In previous stages of the Bill, I have outlined that the Government are clear that aggressive bailiff action is unacceptable. We remain committed to bringing forward reforms which will protect the public from this and ensure that enforcement action is proportionate. We have a firm commitment in the coalition agreement to effect this and we will not falter. The Government understand that bailiff action can be, by its nature, a deeply unpleasant experience for those in debt. We also understand how this can be exacerbated by unnecessarily aggressive and threatening behaviour by some bailiffs. Those who are subject to bailiff action are often the most vulnerable people in society, as has been repeated on a number of occasions in this debate. We will not stand by and allow them to be subject to needless bullying, which can have a very real and significant effect on their well-being.

However, as I have highlighted previously, the Government are looking to tackle problem bailiffs in a number of ways. These are set out in the wide package of proposals within our Transforming Bailiff Action consultation paper. This package of proposals will focus on the root causes of many complaints. Among other proposed reforms, it will improve clarity so that everyone knows where they stand by stipulating when and how a bailiff can enter a property, what they can take and, not least, what they can charge.

The noble Baroness’s amendment will not address these issues, nor will it supply debtors with an independent complaints process which will meet their needs. The Legal Services Act contemplates a service relationship between professionals, such as solicitors and their clients, which is not present between bailiffs and debtors. Under this amendment, debtors would not be able to complain to the Legal Ombudsman because the bailiff is not providing them with a service as required for complaints under the Act. It is therefore neither appropriate nor sensible to try to force the regulation of bailiffs into this framework which is not constructed to address the circumstances in question.

--- Later in debate ---

[Lord Beecham]

My Lords, the Opposition are delighted to join in this outbreak of consensus and congratulate the Minister on a very statesmanlike response.

[Lord McNally]

Given those interventions, I wish only to quote somebody who never made it to this House and say that this is not the end of the beginning. I knew that I would get that wrong, but noble Lords know what I mean—it is the end of the beginning. Of course, the person I am quoting rehearsed these things much more than I do. However, I hope that this is the start of a real drive for diversity. Those who have just contributed to the debate have played a major part in that. However, as we sometimes find in other debates in this House, there is battle still to be joined in this area.

[Lord Beecham]

Perhaps the Minister would care to fortify himself before these debates in the same way that Mr Churchill did.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 10th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.

[Lord McNally]

My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.

--- Later in debate ---

[Lord McNally]

Does the noble Lord not want to speak at the end?

[Lord Beecham]

No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.

I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.

Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:

“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.

These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:

“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.

The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:

“The law already recognises that people react in a certain way in the heat of the moment”,

and argued that the law does not need changing.

The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.

There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.

My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:

“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]

The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.

Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.

I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.

I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 4th December 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.

In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.

[Lord McNally]

My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.

While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.

As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.

The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.

We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.

I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.

I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.

For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.

Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—

[Lord McNally]

If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.

[Lord Beecham]

I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.

I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.

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[Lord McNally]

My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.

We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.

The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.

These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.

[Lord Beecham]

If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.

[Lord McNally]

That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.

This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.

Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.

As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.

I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.

I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.

We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.

I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.

--- Later in debate ---

[Lord Beecham]

My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.

I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:

“These duties shall continue for five years, but may be extended for five year terms by order”,

relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).

Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.

I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.

[Lord McNally]

The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.

I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.

I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.

I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.

I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.

Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.

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[Lord McNally]

My Lords, I am grateful for the contributions from the noble Lord, Lord Beecham, and the noble Baroness, Lady Seccombe. Both have made important points about the concept of local justice and the massive boon that comes from a magistracy rooted in its locality and with a knowledge of the problems of an area and, indeed, of the people of an area. In previous debates I have given a run-out to the names Tommy Croft and Billy Quinn. They both worked in the local ICI works near to where I was born and they were both local magistrates. Everybody knew them and everyone, particularly the youth of the locality, dreaded appearing before them. That is the kind of benefit that we get from a magistracy which is rooted in its locality. But, alas, that was 50 years ago. Both my noble friend Lady Seccombe and the noble Lord, Lord Beecham, are right to say that, in our drive for various efficiencies and for uniform high quality, we must ensure that we do not squeeze out the benefit that we get from a lay magistracy. The magistracy performs a vital role in our justice system and the Government are highly supportive of both lay magistrates and full-time district judges sitting in magistrates’ courts.

In our White Paper, Swift and Sure Justice, we restated our view that the lay magistracy is one of our most important assets. The White Paper also sets out proposals to give magistrates new roles and responsibilities. We are currently working through the responses that we received and we will confirm our plans in due course.

I fully understand the request by the noble Lord, Lord Beecham, for information on the composition of this crucial element of our judicial system. I am delighted to confirm that official data from the Judicial Office are already publicly available on the judiciary website. That includes not only information on the number of lay magistrates in each of the 47 advisory committee areas and the name and number of district judges sitting in magistrates’ courts but also detailed information on gender, age, ethnicity and disability. Those data are published annually on 1 April. The number of lay magistrates in post as of 1 April 2012 was 25,155; the number of district judges sitting in magistrates’ courts was 141, with 134 deputy district judges. Perhaps I can illustrate the level of detail to which this information goes: 51.3% of lay magistrates and 29.1% of district judges were female; 53.9% of lay magistrates and 35.4% of district judges were 60 or over; 4.5% of lay magistrates identified themselves as having a disability; and 8.1% of lay magistrates and 2.8% of district judges were from black and minority ethnic groups. There is even more detail on the website, should noble Lords wish to visit the relevant links.

Given the extensive amount of official information on the composition of the magistracy already in the public domain, I suggest that a requirement for the Lord Chancellor to lay a periodic report before Parliament is unnecessary. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

I am very much obliged to the Minister for that information. I am a little surprised that it did not find its way into the Answer to my parliamentary Question some time ago. It is reassuring that that information is available. I shall withdraw the amendment, but I would like to ask whether there is any indication of, for example, employment categories or, frankly, class, although that may be asking too much; it may be difficult to get. I take it that the Minister would wish to promote diversity and look into the concerns that the noble Baroness and I both raised about the role of the lay magistrate in general. I gather that he is sympathetic to that. Therefore, without seeking to incorporate this into the Bill, perhaps he could undertake to have a look at that departmentally and perhaps in conjunction with, say, the Magistrates’ Association and the Magistrates’ Clerks Association, if that still exists, as a matter of government policy rather than legislation. In the circumstances, I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, I also strongly sympathise with my noble friend’s amendment, in particular in connection with his reference to the cost of collection. I suspect we will return to that issue when the noble Baroness, Lady Meacher, moves her amendment in relation to bailiffs, because, as was mentioned in Committee and no doubt will be mentioned again today, the cost of collection is often wholly disproportionate to the amount of the fines, particularly when it is in the hands of private firms contracted to either local authorities or the courts. It is quite a different matter when the courts have their own collection services run by their own staff.

There will be considerable concern about the potential direct costs, and the indirect costs, if families are driven further into poverty and we have the problems of homelessness, children being taken into care and the like. It seems that the Government’s intention to outsource this work is likely to aggravate what might be a difficult problem in any event. Clearly, the Government are not going to make any further move on this. That is a matter for regret and certainly something that we will have to keep a collective eye on in future, particularly the likely impact on local authorities if things go wrong and families are unable to maintain the costs.

It is perfectly true that those who receive a financial penalty are obliged to pay it, but the likelihood is that it will not just be them who suffer but their dependants. That has financial as well as social implications. I had hoped that the Government would react rather more positively to my noble friend’s amendment but it does not look as if that is likely to happen. That is a matter of regret and it will be for my noble friend to decide whether he tests the opinion of the House at this very late stage. I suspect he may well not do so, but the issue will not go away. We will undoubtedly want to probe whatever arrangements are ultimately made with those who will be responsible for making these collections.

[Lord McNally]

My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.

I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.

I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.

As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.

These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 4th December 2012 Lords Chamber

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

My Lords, as explained by the noble Lord, Lord Beecham, this amendment raises the issue of charging orders. Noble Lords will be aware from the debate in Committee that the power to prescribe the minimum amount above which a charging order may be made already exists in Section 94 of the Tribunals, Courts and Enforcement Act 2007. It makes provision for the Lord Chancellor to make regulations that a charging order may not be made to secure a sum of money below a certain amount. It remains the Government’s intention not to exercise this power. There are several reasons for that.

The Government are committed to providing the right level of protection to genuinely vulnerable debtors. However, we must not do that at the expense of the effectiveness of the civil justice system. We have a duty to ensure that creditors have reliable methods available to them to enforce their debts and charging orders are a legitimate and proportionate option for them to pursue. It is essential to remember that a charging order does not compel a debtor to sell their property. That can be achieved only through an order for sale. Most creditors never apply for orders for sale; only 0.5% of the creditors who have applied for a charging order go on to place an application for an order for sale. Nevertheless, the Government have ensured that there are effective safeguards in place for debtors who are subject to such an order.

In November this year, following a public consultation on this subject, we laid before Parliament draft regulations which set a £1,000 financial threshold for orders for sale relating to Consumer Credit Act cases. These regulations are subject to the affirmative procedure so there will be a separate opportunity for your Lordships’ House to consider those. Responses to the Ministry of Justice consultation on solving disputes in the county court in 2010 indicated that £1,000 was the most appropriate threshold. Respondents to the consultation felt that a higher threshold would risk pushing creditors to seek more draconian methods of recovering their money, such as bankruptcy proceedings, which would expose debtors to a significantly increased likelihood of losing their homes, an outcome that none of us would wish to see.

We must also remember that orders for sale are subject to judicial discretion. The court must take into account all the circumstances of the case before deciding whether to make an order. That provides essential protection against disproportionate action. The consultation showed that a high financial threshold for the making of an order for sale would restrict judges’ discretion in individual cases—for example where a debtor has all their assets tied up in property including investment properties or stocks and yet owes a number of small debts to multiple creditors. It may be equitable to grant an order for sale to release some of that capital.

With the new order for sale regulations in place, creditors have the assurance that they can recover what is owed to them while debtors are not in danger of disproportionate enforcement action. The Government believe that these regulations are proportionate and an effective approach to achieving the necessary delicate balance between creditors and debtors. They therefore do not plan to introduce a financial limit on charging orders. In the light of that explanation I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Beecham]

My Lords, that is a very disappointing response, which echoes the response given by the noble Baroness, Lady Northover, in Committee in July. Neither she nor the noble Lord have explained why the coalition agreement, which is very explicit in terms of laying down a £25,000 threshold for an order for sale, which of course follows on from a charging order, has been abandoned. The noble Baroness said:

“In terms of the coalition's commitment to a threshold for orders for sale at £25,000, evidence in the consultation did not support a £25,000 limit”.—[Official Report, 2/7/12; col. 542.]

But we do not know—at least I do not know—what that evidence was and from where it was derived. It was presumably from the creditors. I cannot imagine that there would be significant evidence from those who owed money or those who advise those who entered into consumer credit arrangements who were in difficulties suggesting that £25,000 was too high a limit.

Furthermore, at the last count, the Government were at least contemplating a £1,000 limit. That is much too low in my submission but even that has been abandoned without any explanation. The Government are falling over backwards to help creditors in this position—many of them are not the most desirable organisations operating in the financial services world—at the expense of the worry and disturbance that can be caused to borrowers and their families and ultimately to the taxpayer, because in so far as these orders are enforced, homelessness and all the other social consequences will follow which will be a burden for the taxpayer.

It is extremely disappointing that the Government have caved in to pressure from the industry at the expense, I repeat, of very vulnerable people and the taxpayer at large. But as it is clear that the Government are not disposed to make any move consistent with their original policy, I feel obliged to beg leave to withdraw the amendment.

Justice: Legal Advice

Debate between Lord McNally and Lord Beecham

Tuesday 27th November 2012 Lords Chamber

[Lord McNally]

My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.

[Lord Beecham]

My Lords in 2011-12 the Newcastle CAB advised on 8,000 benefits problems. It has now lost £150,000 of government funding and three and a half posts, including its specialist welfare rights adviser. Gateshead CAB has lost £500,000. What advice can the Minister give these and other hard-pressed bureaux about how they can beat the rising demand for welfare law and welfare rights advice?

[Lord McNally]

I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.

Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012

Debate between Lord McNally and Lord Beecham

Tuesday 20th November 2012 Grand Committee

[Lord Beecham]

My Lords, I ought to declare an interest as a member of the Law Society and as a virtually non-practising solicitor, who in his professional career has no doubt contributed significantly to the assets of the compensation fund without, as I recall, having to draw down from it, no doubt to the satisfaction of my former clients.

The Solicitors Regulation Authority makes the Circumlocution Office look like a model of efficiency, to judge by the delays in its approach to this matter. It does not seem to have thoroughly mastered the implications of the complex structure that has been created as a result of the formation of alternative business structures, to use the jargon that the Minister referred to. Many of us have reservations about these new bodies but, be that as it may, they are with us and they certainly have to be regulated—in particular, there has to be proper provision for compensation where things go wrong.

It appears that the SRA is to review these compensation arrangements as part of what it calls a root-and-branch review in two years’ time. The Law Society concedes that it would be sensible to extend the time during which the present arrangements continue, but it is far from certain that the SRA has the necessary resources to conduct that review thoroughly and properly. Perhaps the Minister could indicate what assurances he has received about the resources and the timeframe and whether the MoJ will be in regular contact with the SRA to try to ensure that a timetable is agreed and kept to. It is clearly important, given the likely growth of these new structures and the potential for claims to arise in the mean time, that the system is improved as rapidly as possible. As I say, it is not clear—to the Law Society, at any rate—that the SRA is in a position to do that. There are other problems with the SRA, with which the Minister is no doubt familiar, but those are not a matter for discussion today.

In the Law Society’s view, there is also a case for looking at the compensation fund as a whole. The society has for some time been calling for a review to look at the impact of the new structures and whether it is still appropriate for there to be a single fund covering both types of practice—traditional solicitors’ practices and those of the new structures. The new structures will, of course, embrace non-solicitors as well as some solicitors and they may reach out into areas other than traditional legal practice, so there is a question whether the scheme would apply to non-legal activity and so on. All this seems to be somewhat vague at the moment.

The Law Society also points to the need to consider the impact of a recent decision by the authority to transfer the cover for non-applied firms from a risk pool to the compensation fund. That apparently exposes the fund to a new type of claim relating to negligence and negligent actions.

There is also a question of whether the present management arrangements are up to dealing with these complex new positions. I acknowledge that none of this is the direct responsibility of the department, but given that the department, under the previous Government and now under the current Government, is establishing the framework, it is surely necessary for the department to take an active interest to ensure that a satisfactory position is achieved. We do not want a position in which either the legal profession is paid, as it were, for the possible errors of the new structures, or in which people find it difficult to obtain compensation when they should have it. While it is obviously necessary for this extension to take place, I urge the Minister to indicate that his department will be conscious of the need to ensure, as far as it can, that the SRA carries out what is expected of it within that timescale and no later and that it has adequate professional and technical resources to do the job.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Beecham, for that response. I am aware of his long and detailed knowledge of the solicitors’ profession, so I was trembling a little that I was going to be baffled by professional science. He indicated, I must say, a slight irritation on my part that one looks pretty silly when one puts in a sunset clause then has to come back and say, “Please, lift it”. The intention was good—it being thought that the presence of a sunset clause would produce a sense of urgency in the Solicitors Regulation Authority—but that was, perhaps, overoptimistic. Not putting in another sunset clause is common sense—better that we tell them to get on with it—and I fully take his point that my department should take a close interest in the matter. The review is primarily a matter for the SRA and details of the review will be in its strategic plan. However, the Legal Services Board, the oversight regulator of the legal services framework, has indicated that it expects the SRA to report on progress. I assure the noble Lord that I will keep an eye on progress, because I do not want to come back here to tell him that there has been none.

The SRA has assured us that it is now in a better position to complete a fundamental review of its compensation arrangements, which will determine the best solution for the compensation arrangements, not only for ABSs, but for traditional firms. It is therefore too early at this stage to get any views to dictate the outcome of the review. The SRA will note the irritation from all bodies—the Law Society, the LSB, the MoJ and the Official Opposition—and I hope that that, even more than a sunset clause, will spur it to action. Work on the review has started and the detailed scope of the project has been developed. The SRA held a meeting with the LSB to discuss and agree the detailed scope and the project scope and methodology has been approved by the financial protection committee, a sub-committee of the SRA board. A summary of the scope and methodology will be published on the SRA website in December 2012.

The project has now entered a research phase and initial meetings with stakeholders are being held. The SRA is committed to transparency of research in this area and has undertaken to publish information and research findings throughout the project. The SRA was able to dedicate policy resources to the compensation arrangement review from June 2012. However, data-gathering started earlier, in spring 2012. I can assure the Committee that work is now under way, and I and the MoJ will continue to keep a very close interest in progress.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 13th November 2012 Lords Chamber

[Lord Beecham]

Well, there is a first time for everything.

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

Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.

Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.

As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.

It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.

A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.

Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.

The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.

Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.

I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Tuesday 30th October 2012 Lords Chamber

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.

I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.

I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.

As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.

Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.

In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,

“The journey of a thousand miles begins with a single step”.

I hope that this is the single step that takes us towards restorative justice.

I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.

I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.

[Lord Beecham]

Does the Minister agree that it is essential that the horses run in the same direction?

[Lord McNally]

Absolutely. We might get on to troikas in a few minutes, but we will wait for that.

I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.

Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.

--- Later in debate ---

[Lord McNally]

Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.

[Lord Beecham]

This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.

[Lord Beecham]

I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.

[Lord Beecham]

These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.

--- Later in debate ---

[Lord Beecham]

My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.

[Lord McNally]

The noble Lord should see me in my swimming trunks before making that judgment.

[Lord Beecham]

I am too young to appreciate that offer.

It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?

It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.

We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.

I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.

Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,

“proper resources, both human and financial”,

to investigate it and, by implication, others like it.

The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.

Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.

Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.

Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,

“proper resources, both human and financial”

to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?

In their response to the consultation document the Government indicated that they would,

“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.

Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?

--- Later in debate ---

[Lord Beecham]

I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.

[Lord McNally]

I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.

Data Protection (Processing of Sensitive Personal Data) Order 2012

Debate between Lord McNally and Lord Beecham

Wednesday 18th July 2012 Grand Committee

[Lord McNally]

My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.

On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.

The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.

[Lord Beecham]

I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.

[Lord McNally]

I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.

One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.

Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012

Debate between Lord McNally and Lord Beecham

Wednesday 18th July 2012 Grand Committee

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

My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: Her Majesty’s Inspectorate of Court Administration, which I shall hereafter refer to as HMICA, and the Public Guardian Board, which I shall hereafter refer to as the PGB. This omnibus order provides for abolition of these bodies, with no transfer of functions in the case of the PGB and, in the case of HMICA, with a transfer of certain functions which I will outline shortly.

The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies, which had as its overriding aims to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked, first, to address the overarching questions of whether a body needed to exist and whether its functions should be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case both HMICA and PGB, the Ministry of Justice felt that retention was not justified. They were therefore included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.

I will now give some background on each body in turn, beginning with HMICA. It was set up in 2003 and was given two main statutory duties—first, to inspect and report on the system that supports the business of the Crown Court, county and magistrates’ courts and, secondly, to carry out joint inspection, along with other criminal justice inspectorates, of the criminal justice system. However, the situation in which HMICA was working changed greatly after it was created. Her Majesty’s Courts and Tribunals Service, previously HM Courts Service, has since that time developed and put in place more sophisticated and robust ways of carrying out audits, which has mitigated the need for independent inspection of court administration systems.

The outcome of this was a decision by the previous Administration to close HMICA administratively. It was felt, given the more robust audit and monitoring processes then in place, that continuing to fund the body was unjustified and it was closed at the end of December 2010 with the full support of the Lord Chancellor and inspectorate’s senior management. This order, therefore, merely puts on a legislative footing that which has already been administratively achieved. Closing HMICA will save around £6.4 million against the Ministry of Justice baseline for this spending review period.

The Government remain committed to joint inspection of the criminal justice system, and this order includes a transfer of functions to the other criminal justice inspectorates, which will enable them to inspect HMCTS for the purposes of joint criminal justice inspections. This will ensure that no necessary functions previously carried out by HMICA will be left without a statutory basis.

The legislative abolition of HMICA also formed part of a Ministry of Justice consultation that took place in October 2011. Eighteen responses were received, of which seven were opposed to abolition, three expressed some concerns, six stated their support for abolition and two did not express a view either way. Among those who supported abolition, the overriding feeling was that there was no need for an independent inspection of the courts in the current climate, and that HMICA’s function could be adequately carried out elsewhere. Those who opposed abolition were generally concerned that a key government body would be left without independent scrutiny, and that the inspectorate’s specific functions would be left in jeopardy. These concerns have been addressed in the transfer of functions that have been written into the order, and the Ministry of Justice therefore finds no compelling argument within the consultation responses to change its proposal to abolish.

I turn now to the Public Guardian Board, the second body addressed in this omnibus order. The PGB was set up in 2007 to scrutinise and review the way in which the Public Guardian discharges his or her functions and to make such recommendations about the matter to the Lord Chancellor as it thinks appropriate. While this is a worthwhile role, the Government believe that it can now be more effectively and efficiently delivered through new governance arrangements within the Office of the Public Guardian, which I shall hereafter refer to as the OPG, the executive agency which supports the Public Guardian’s work. The Ministry of Justice feels that a separate body for this purpose is no longer needed. As a result, the board was found not to meet the key tests for retention as part of the 2010 government-wide review of public bodies, and was listed for abolition in the Public Bodies Bill.

Following the abolition of the PGB, governance of the Public Guardian and his office will be provided, in line with usual government arrangements for executive agencies, through a management board within the OPG. This will be chaired by the OPG’s chief executive, with executive membership from the OPG and the Ministry of Justice as well as three non-executive directors. The presence of non-executive directors will provide independent scrutiny and challenge of the discharge of the Public Guardian’s functions and those of his office. Collectively, they will have relevant experience such as business and performance management, financial management and dealing with those who lack capacity. I must emphasise that the board itself has also accepted the proposal to abolish, and held its last meeting in June.

As well as fulfilling a key aim of the public bodies review of discontinuing activities that are no longer needed, the abolition of the PGB will provide savings in the region of £400,000 over the current spending review period. Implementation of the new governance arrangements for the OPG will incur some costs that will offset these savings, for which our best estimate is no more than £187,000 over the same spending review period. As with HMICA, the proposal to abolish the PGB was included in a full public consultation which ran from July to October 2011. There were a total of 12 responses, of which 10 did not oppose abolition as long as alternative governance structures for the OPG were put in place. Two were opposed to abolition due to concerns that the PGB’s functions would not be adequately carried out by other means. As we have ensured that the board’s functions will indeed be adequately replaced by the OPG’s management board, the Ministry of Justice finds no compelling reason to change the proposal to abolish.

I turn now to the scrutiny given to this order, which was laid before Parliament on 10 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if that is felt necessary. This order been scrutinised by several Select Committees: in this House, the Secondary Legislation Scrutiny Committee; in another place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period. The Secondary Legislation Scrutiny Committee reported on this order on 24 May, having requested a few points of clarification from officials. The committee was satisfied that the order met the tests set out in the Public Bodies Act, but specifically asked the Minister to address two key points during this debate, and I will now address these.

First, the report stated that public reassurance would be enhanced by the results of Her Majesty’s Courts and Tribunals Service’s scrutiny of court administration being published on an annual basis. I can confirm that Her Majesty’s Inspectorate of Prisons provides a full report of each inspection, and recommendations to improve outcomes are submitted to the relevant Secretary of State. Moreover, all these reports are published and publicly available.

Secondly, the report suggested that the Ministry of Justice should publish the outcome of the new governance arrangements for the Office of the Public Guardian. I can confirm that the Office of the Public Guardian publishes, and will continue to publish, an annual report, and that this will indeed cover governance arrangements as well as key performance indicators and monitoring outcomes. In fact, the latest OPG annual report was laid before Parliament only last week. Key stakeholders were also sent letters outlining the new governance arrangements before they came into effect, as outlined in the consultation response. The Ministry of Justice has taken on board the views of the Secondary Legislation Scrutiny Committee, and thanks it for its thorough reporting.

HMICA and the PGB are two public bodies that were created to carry out particular functions, but their roles have either been superseded by other bodies or can be carried out more efficiently and effectively through other means. HMICA is already closed administratively, and the Ministry of Justice has taken the opportunity within this order to put its residual functions on a statutory footing, ensuring ongoing scrutiny of court administration and the wider criminal justice system. The functions of the PGB have not been formally transferred but we have put robust governance mechanisms in place in the OPG that will ensure continued oversight of the work of the Public Guardian.

The Ministry of Justice remains committed to close scrutiny of the courts and tribunals system, and to continuing the excellent work of the Public Guardian. In the current financial climate, however, it is right that unnecessary activities and bodies across government should be removed; abolishing these two bodies will save the public purse several million pounds. I therefore commend this draft order to the Committee and beg to move.

[Lord Beecham]

My Lords, as the Minister has said, HMICA was effectively abolished last December. It is now, seven months later, that we have the interment in statutory form. Some sort of inquest might be thought appropriate.

This is another example of what I would call pre-legislative implementation, as I have done in respect of several other measures the Government have brought forward in the past two years. It is unfortunate that the decision has been implemented even before the relevant secondary legislation has been brought forward. Having said that, I do not dissent from the view that change is, if not necessary, then certainly not damaging, subject to the observations of the Secondary Legislation Scrutiny Committee about adequate reporting and annual reports to the public.

By sheer coincidence, I received a copy of the annual report of Her Majesty’s Courts and Tribunals Service just this week—a rather glossy document. There was very little in it about the actual operation of the courts and tribunals. There is a lot of financial information. I do not have the document with me, but my recollection is that there is only about a page or so of detailed reporting—in fairly minimal fashion—of the work of the service. Given the extra responsibilities, and while acknowledging that custodial arrangements will be dealt with separately, there ought to be a fuller report than has evidently been the practice thus far.

--- Later in debate ---

[Lord McNally]

My Lords, again, I thank the noble Lord, Lord Beecham, for his constructive response. I am not sure that it was pre-legislative implementation; perhaps it was pre-legislative anticipation, but I take the point. I also accept his point about annual reporting. I am sure that the relevant bodies will note his comments that annual reports should be just that. There should be full coverage of all areas of responsibility, particularly when the body concerned has taken on new responsibilities.

I also take on board the point about the Public Guardian. There is concern and we must be sure that oversight is proper and full. One aspect that we now hear about in relation to our ageing population is the need to make sure that those whose mental capacities may be diminished have proper protection. It is important that that is assured. We believe that the presence of non-executive directors will provide independent scrutiny and challenge to the discharge of the Public Guardian’s functions and those of his office. Collectively, the directors will have the relevant experience, including in business, performance management, financial management and dealing with those who lack capacity. There will also be non-executive director representation in the Public Guardian’s two existing stakeholder groups, which meet four times a year. There will be continued liaison between the OPG, the MoJ’s sponsor team and relevant policy officials, including those who led on the Mental Capacity Act 2005. I hope that the noble Lord will accept those assurances that his very valid questioning on this is being addressed.

I do not think that any other points were raised. I emphasise again that each report and recommendation arising from all inspections of the courts will be published for public scrutiny.

[Lord Beecham]

I am very grateful to the Minister, who has answered fully. I am stretching the purpose of today a little wider than I should, but I wonder whether it is the Lord Chancellor’s intention to reply to the letter that he received from the outgoing chairman and whether that reply will be placed in the public domain.

[Lord McNally]

Knowing the Lord Chancellor’s courtesy in all such matters, I am sure that a full reply will be sent. I will see that it is also copied to the noble Lord, Lord Beecham.

When I saw that the title of the order included “public bodies” and I saw the noble Lord, Lord Beecham, come in, I was petrified. I thought that I would be grilled, so I was even more pleased than usual to see him take his place at the Dispatch Box, rather than as a Back-Bencher. Having made that confession, I commend the Motion.

Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012

Debate between Lord McNally and Lord Beecham

Wednesday 18th July 2012 Grand Committee

[Lord Beecham]

My Lords, I have no problem with the substance of this order. However, the Secondary Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:

“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.

The committee made much the same point in relation to this order, saying:

“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.

Of course, I am being repetitive at the moment but that is because it is necessary to be so.

The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.

[Lord McNally]

I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 2nd July 2012 Lords Chamber

[Lord McNally]

Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.

[Lord Beecham]

I am glad that the noble Lord is not emulating Rasputin in terms of his trips across the ice.

The Opposition do not take issue with the amendments but it is interesting that in a move to simplify the system we have a complex series of amendments. They add several pages to Schedule 13. By sheer chance today, a Mr Patrick O’Brien, a research associate of the Constitution Unit, has written a blog—I suppose that is what it is—about the issue of judicial appointments under the Bill. He makes the point:

“The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads—the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types—and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels though the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it”.

Can the noble Lord give an indication of when, if at all, regulations will be introduced and what they might cover? Mr O’Brien goes on to say: “The CRA”—Constitutional Reform Act—

“is not just addressed to civil servants”—

or Members of your Lordships’ House or indeed the other place. He continues:

“It has constitutional significance and”,

should be,

“comprehensible to the general public”.

The noble Earl, Lord Attlee, referred to improvements in satnav technology when he was answering a Question on transport earlier. The implication of Mr O’Brien’s article is that we need the equivalent of satnav to navigate through this complex field of appointments. Having said that, we do not object in principle but it would be helpful if a guide were available to the public as well as to the practitioners so that they can see how the new system is supposed to work. Again, as with the previous amendment, I assume that the Government will be monitoring developments and will ensure that problems are dealt with in due course.

[Lord McNally]

My Lords, I am extremely grateful to the noble Lord, Lord Beecham, for his indication of support and for some sensible suggestions that I hope will assist the Committee. We will be publishing draft regulations before Report. The idea of a simplified guide on how these will impact is very sensible and I will take that back to my right honourable friend the Lord Chancellor. Amending existing legislation can be extremely complex when fitting in new proposals to existing legislation.

The noble and learned Lord, Lord Falconer—I was going to say my noble friend—along with the noble and learned Lord, Lord Woolf, showed a certain pride of authorship in the new disposition of our legal system after the reforms of the earlier part of this century. What we are trying to do, in our different ways, is build on reforms that have given us an effective system. These include promoting greater diversity in our judiciary. As we were discussing the other day, we are also conscious of the important nexus of the system, with the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 2nd July 2012 Lords Chamber

[Lord Beecham]

We are addressing these issues in wonderfully archaic language. The “scandalisation” of judges; the “murmuring” of judges in Scotland, which puts me in mind of the murmuration of starlings—it is, apparently, the collective noun for starlings—and here we are in this High Court of Parliament considering this arcane offence.

Like the noble and learned Lord, Lord Goldsmith, I deprecate the tendency of politicians of all political colours and Ministers of different Governments publicly to criticise judges when decisions have gone against them. I also deprecate the tendency of the tabloid press in particular to denounce the judiciary for perceived leniency, or whatever it might be, from time to time. However, as other Members of the Committee have made clear, that does not justify applying a criminal offence and criminal sanctions to those who are critical, rightly or wrongly, of what the judiciary has done.

Scandalising the judiciary has not always been the province of politicians or the media. One of the most frequent scandalisers of the judiciary was that eminent Conservative lawyer and Lord Chancellor, Lord Birkenhead, known as FE Smith. He frequently clashed with judges. On one occasion the judge, in an irritated spasm, inquired, “Mr Smith, what do you think I am here for?”, to which he replied, “My Lord, it is not for me to question the inscrutable workings of providence”. That came as near as anything to scandalising that particular judge. I do not think it was Mr Justice Darling, whose reputation has been adequately canvassed tonight.

We certainly support this amendment. It is clearly timely to dispose of the revival of a procedure that is quite antiquated and unnecessary. I hope that the Government will accept the amendment.

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

My Lords, every so often this House produces a little nugget of a debate that is extremely important and that will bear further reading and study. I am grateful to all noble Lords for their contributions, and to the noble Lord, Lord Beecham, for his murmuring of starlings.

[Lord Beecham]

Murmuration of starlings.

[Lord McNally]

Murmuration. We learn something new every day in this House. I also thank him for another good FE Smith story.

The noble Lord, Lord Pannick, introduced the amendment with his usual eloquence and well-structured argument, marred only by a terrible joke about Fifty Shades of Grey, but at least yet another book was plugged in this debate. We have all been rushing to eBay to get the remaining copies of Borrie on defamation, which will be worth getting; and of course Peter Hain’s memoirs, as has been rightly pointed out, have been given far greater coverage than I recall their getting when they were published.

Nevertheless, what has been discussed is extremely important. I very much welcome the contribution of the noble and learned Lord, Lord Carswell. As a judge in Northern Ireland, he and his fellow judges were so important in upholding the rule of law in the most difficult of circumstances, and in so doing he not only has our admiration but we are all in his debt for his courage and consistency. For him to say that he thought that the law was not necessary weighs heavily in making any judgment. I also share the views of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, about getting the balance right between politicians and judges.

I understand what the Prime Minister meant when he spoke in the other place about there always being a little bit of rough and tumble between the two in the modern age. I think I have said at the Dispatch Box that a little bit of dynamic tension between politicians and the judiciary in a democracy does not go amiss. The warning from the noble and learned Lord, Lord Goldsmith, is correct, and he will not be surprised to know that the present Lord Chancellor—I cannot speak for the present Attorney-General or the Solicitor-General—has not been slow to remind exasperated Ministers that it does not help to start opining on this. The balance of contributions was right that it will happen occasionally, but if it became too much of a free-for-all it would genuinely undermine public confidence in the judiciary and in the workings of our legal system. The warnings are well made.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Wednesday 27th June 2012 Lords Chamber

[Lord McNally]

It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.

[Lord Beecham]

What, in the experience of the past seven years, has revealed defects in the present system?

[Lord McNally]

It has been the feeling that the retention of a veto in this matter was keeping in the political process.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Beecham

Monday 25th June 2012 Lords Chamber

[Lord Beecham]

I shall speak to Amendments 68A, 68B and 68C and, notionally, give an indication on the stand part question on Clause 17.

I begin by repeating a declaration of interest: I am an unpaid consultant in the firm of solicitors of which I was a senior partner. I will be saying something about the Court of Protection, with which the firm and I have had dealings which partly inform some of what I will say this afternoon. In addition, I should perhaps, through an abundance of caution, declare that my daughter sits as a part-time deputy judge; but whereas I have occasionally briefed her when I was at the office, she has not briefed me in connection with today’s proceedings.

I shall go from the very particular to the general in discussing these amendments, and deal first with Amendment 68A, which seeks to remove the limits on the numbers of sittings that magistrates may make when sitting in the family court. The noble and learned Baroness, Lady Butler-Sloss, raised this matter at Second Reading and I share her opinion that it is undesirable to impose such a limit, given the necessity of building up expertise and providing continuity on the part of that part of the magistracy which deals with these very sensitive family issues. That is not a view universally shared, but it is my view and it will be interesting to hear the Government’s response and their justification, if they see that there is one, for maintaining the limit. I believe that the Norgrove report advocated its abandonment and it has logic on its side.

The remaining substantive matters are Amendments 68B and 68C. I should say immediately that the indication that I would move that Clause 17 not stand part of the Bill was a procedural device to allow a general debate which has been superseded by the amendments that I have now tabled. I will not move that Clause 17 not stand part of the Bill. We accept that it is desirable to move to the structure of single courts. The question is how they will be administered and what steps can be taken to ensure that the whole system of justice is adequately reviewed, kept under review and improved from time to time.

Amendment 68B seeks to require a report on the creation of the single court and how it works. As I say, we accept the concept in principle. We would like the Government to undertake a review after a relatively short time to see how it works in practice. There are concerns—some of which I will touch on when I come to the next amendment—around access, the venue and the like, particularly in the civil courts. Also there is a question about how the new family court will work. We are reasonably confident that it will work provided that it is adequately resourced but it would be sensible to review the situation before much time passes.

Having said that, my main concerns are reflected in Amendment 68C, which seeks an annual review by the Lord Chancellor of the workings of the whole Courts and Tribunal Service to take into account the experience that will accumulate over time, particularly the experience of practitioners and parties, but also to reflect other changes which are now in train. The civil justice system is undergoing massive change, not only as a result of the proposals in the Bill but also as a consequence of Lord Justice Jackson’s comprehensive if—as we have debated at some length on a previous Bill—controversial review which paved the way for a radically different approach to the provision of legal aid and advice, and the financing of litigation.

In pages 428-34 of his report, Lord Justice Jackson called for improvements in courts administration in the light of a pervasive feeling of dissatisfaction on the part of many litigants and their advisers, occasioned in part by a high turnover of staff and an excessive time spent on processing documents unlikely to involve judicial input. His report called for the establishment of regional centres which could attract long-term staff. It was felt that if you had a small number of centres instead of having them dispersed across the whole country you would be able to find and retain staff with the necessary expertise. There seems to be some force in that intention. However, Lord Justice Jackson stressed that it would,

“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.

In the event, the Government, for ever waving the banner of localism—I remind your Lordships that “waving” can be spelt in two different ways—have established a system in which all money claims have to be issued not just in regional centres but exclusively in Salford. Salford not only hosts the BBC and Manchester United, it also—

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

Does it?

[Lord Beecham]

Not Manchester United. I withdraw that disgraceful slur on Salford or Manchester United—whichever way you want to look at it. All right, we have the BBC and the Lowry gallery in Salford and we now have the courts’ business centre there, too. Unfortunately, the establishment of that centre has led to a torrent of complaints about delays and loss of documents reported on several occasions; for example, in the Law Society Gazette on 12 February, 8 March and 12 May, when the headline was “Civil Court System Faces ‘Meltdown’”. On 24 May—as recently as that—it reported on a work to rule by staff intended to last until 31 July which is,

“evidence of a civil courts service reaching breaking point”.

The same story describes district judges being put up in hotels when on duty in Salford, because that is where they have to go, with a deputy district judge—not my daughter—complaining:

“New cuts are announced daily, and yet HMCTS is now squandering taxpayers’ money on hotels”.

--- Later in debate ---

[Lord McNally]

My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.

[Lord Beecham]

The noble Lord will acknowledge, and I am pleased to say, that sometimes it is very dangerous for Manchester United to venture to the north-east.

[Lord McNally]

I agree. The noble Lord kindly gave me a plank on which to walk to firmer ground. His points about the operations of the Court of Protection are wider than the scope of this Bill and it would be better if I write to him and put a copy in the Library of the House. This has been mainly a debate about the fundamental overhaul of the civil and family court system in England and Wales, which has the aim of providing an effective, proportionate and efficient system for resolving disputes.

With these principles in mind, Clause 17, as has been said, establishes a new single county court and a single family court for England and Wales. In January 2008, the Judicial Executive Board commissioned the former Lord Justice of Appeal, Sir Henry Brooke, to conduct an inquiry into civil court unification, and the noble Lord, Lord Beecham, quoted from Sir Henry’s report. In that report, Sir Henry recommended that there should be consideration on the creation of a single national court.

Our proposals mean that a single court will provide a more efficient civil justice system where litigants can achieve a more efficient, proportionate and speedier resolution to their disputes. Access to justice will be increased as the single county court will enable Her Majesty’s Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in a cost-effective way. Court users in general will see a more responsive and consistent service through more effective use of information and communication technology, and the ability to centralise and standardise back office functions.

The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.

Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.

As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates’ court or a county court and, if so, which category of county court.

The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.

--- Later in debate ---

[Lord Beecham]

It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today’s debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.

I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report—after all, with the Summer Recess, it will be some months before we do that—he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.

[Lord McNally]

The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report—perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.

[Lord Beecham]

I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.

The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to “a county court”, which now need throughout the legislation to be amended to “the county court.”

However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.

Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.

As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the “magistrates’ court” for the “family court”.

I should draw to the Committee’s attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.

There is also one final set of amendments in this group to which I should draw the Committee’s attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.

[Lord Beecham]

My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.

--- Later in debate ---

[Lord McNally]

I beg your Lordships’ pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film “The Birds”, in which the birds start to appear rather menacingly. I am looking at the Cross Benches, where noble Lords are starting to come in and wait.

These amendments implement one of the recommendations of the Delegated Powers Committee’s report on the Bill. In line with that committee’s recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.

[Lord Beecham]

My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,

“make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser”.

It is a long time since I participated in a magistrates’ court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.

The concern has been expressed before in your Lordships’ House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices’ clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister’s enlightenment with interest, if there is such enlightenment.

[Lord McNally]

My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates’ court may be delegated in rules to justices’ clerks if a function is one which may be undertaken by a single justice.

As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.

This new measure provides scope for justices’ clerks and assistant justices’ clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court’s functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates’ courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.

We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.

[Lord Beecham]

I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.

It would be helpful to your Lordships’ House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts—where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.

[Lord McNally]

It is a very fair question and I will try to give the noble Lord a very full answer.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Monday 23rd April 2012 Lords Chamber

[Lord Beecham]

I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.

With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,

“clinical services which took place at a time when the individual was child”.

There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.

It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.

I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.

That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.

This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.

I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.

[Lord McNally]

My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,

“would alter the financial arrangements made by the Commons”,

and goes on to state that,

“the Commons do not offer any further Reason”.

As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.

Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.

One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.

The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 27th March 2012 Lords Chamber

[Lord Beecham]

That is on top of the £80 million of cuts to citizens advice bureaux.

[Lord McNally]

Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector—local government and national government —should not face this reality.

In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party. We believe that this provides a clear safeguard for children and vulnerable young people who lack capacity to conduct proceedings on their own behalf.

We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual’s right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be a key consideration in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.

Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.

--- Later in debate ---

[Lord Beecham]

My Lords, I support my noble friend Lady Hollis and, of course, the noble Lord, Lord Best, in moving this amendment. They have made a very powerful case, which was rehearsed on Report. At that time, I quoted Shelter and the Nottingham Law Centre, two separate organisations from the not-for-profit sector, which strongly urged the Government to change their position on this. They are the organisations that provide legal help and advice, not necessarily extending to court proceedings, on the benefits side as well as the remainder of the housing issue—some of which, in fairness, the Government are including within scope.

This is a classic case, as my noble friend has implied, where there is a potential modest saving to the Ministry of Justice budget but a potential extra cost to other departments. If homelessness ensues, particularly where children are involved, very substantial costs are imposed on the budgets of the local authority, and maybe also on the Department for Work and Pensions, which in certain circumstances may be devolved; for example, special needs payments or crisis loans, which a family on the streets may clearly require.

In this context, cost is a consideration which, if anything, tells against the Government’s proposals rather than the other way round. I hope that the Government will recognise the strength of arguments from those dealing with this directly—not from the legal profession in this case, but from the advice sector—and provide for the possibility of timely advice being given to avoid worse consequences for the individuals and their families and, for that matter, the public purse. I hope that the Minister will reconsider the position the Government have hitherto adopted.

[Lord McNally]

My Lords, the noble Lords, Lord Beecham and Lord Best, acknowledge that this is one more time on which we have discussed these matters. We had detailed discussions in Committee and on Report. Amendment 16 is intended to bring into the scope of legal aid advice and assistance in relation to an individual’s financial situation, such as debt and housing-related welfare benefits issues, where they are linked to the loss or threatened loss of the individual’s home under paragraph 34 of Part 1 of Schedule 1. The House will be well aware that our proposals ensure that legal aid continues to be available to an individual in relation to the immediate risk of losing their home, through possession or eviction. This includes cases where the underlying cause is a debt or welfare benefits issue.

It may reassure noble Lords if I reiterate a few brief examples of where legal aid will be available under the loss-of-home provisions in paragraph 34 of Part 1 of Schedule 1. First, legal aid will continue to be available before a case is brought to court. It will be available where possession or eviction action is contemplated. Where an individual receives a letter which threatens possession action, legal aid will be available at that point. For example, legal aid will remain available to a person threatened with possession action for mortgage arrears to negotiate with their mortgage lender.

In the context of welfare benefits, it is important to recognise that, where a landlord threatens their tenant with possession proceedings, legal aid would be available to the tenant to reach agreement with a landlord to delay the possession action pending the resolution of the welfare benefits issue. If possession proceedings are issued, legal aid will be available to an individual to argue for an adjournment—for example, if they are likely to be able to make the necessary payments if an underlying benefits dispute is resolved in their favour. Where an individual loses a welfare benefits appeal and subsequently faces possession action for rent or mortgage arrears, legal aid will be available in relation to that action. We will also retain legal aid provision for judicial reviews about welfare benefits decisions and for welfare benefits matters which relate to a contravention of the Equality Act 2010.

This amendment would go much wider and would generally provide for legally aided advice and assistance on the financial circumstances of an individual—such as for underlying debt or welfare benefits issues—where these are linked to loss of home. This would run contrary to our approach. At a time when the country is recovering from a genuine fiscal crisis we need to focus limited resources on the highest-priority matters. As I have said before, we cannot agree that legally aided advice and assistance should be generally available in relation to a person’s financial circumstances—such as for debt or welfare benefits issues—in the situations covered by the amendment.

There is no doubt that people, including those in potential loss-of-home situations, find advice useful in areas such as debt and welfare benefits. But we are firmly of the view that what those affected often need is practical advice rather than legal advice funded by legal aid. Individuals who have debt problems often need advice on managing their finances better and on practical measures to resolve their situation, and can access that advice through a range of specialist organisations. It will come as no surprise to the House to hear me repeat that the Government greatly value the not-for-profit sector and the good-quality free advice which it provides to people in their communities on these sorts of matters.

My department is working closely with the DWP to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and the system of subsequent tribunal appeals. This work should make it easier for claimants to receive the right benefit provision. Moreover, welfare benefits appeals matters are resolved through a tribunal which is designed to be accessible without legal assistance, and general advice on welfare benefits is available from a number of sources.

I know that this issue has been raised at every stage. After these debates, we do not just close the book and not take any notice. We go back to the department and the Ministers and advisers have a discussion. There is also a discussion about the issues raised with other departments. This is not a decision taken lightly but we believe that the loss-of-home proposals in the Bill get the balance right in terms of focusing limited public funds for legal advice and assistance in the most appropriate circumstances. We have listened to the appeals made by the noble Lord and considered them. At this point, we cannot agree with them. I ask him to withdraw his amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, the Opposition certainly support the amendment moved by the noble Lord, Lord Pannick, in his customary and eminently reasonable way. He clearly draws the analogy between the changes that the Government, to their credit, accepted in relation to legal aid and what is being advocated here. It adopts the precautionary principle whereby if things went wrong—they may not of course—there would be a fairly simple way of correcting them if the amendment were to be accepted. If it is not accepted, we would presumably be in for a long delay while primary legislation was enacted, as both noble Lords have made clear.

In this case, discretion is the better part of legislative valour, and I hope that the Government will accept the amendment. It does not bind them to anything but provides an opportunity for corrective measures to be taken, if that should prove necessary, in precisely the same way that they have accepted in relation to legal aid.

[Lord McNally]

My Lords, the noble Lord, Lord Pannick, has tabled his amendment along the lines he suggested on Report. He suggested then that it might be sensible to have a power to disapply the effects of Part 2 in relation to the abolition of recoverability of success fees and insurance premiums in respect of particular categories of case. The amendment now seeks to achieve that.

I have referred on several occasions during the passage of the Bill to its central architecture. The Government’s view, quite simply, is that the current recoverability regime is wrong in principle. It is wrong in principle to impose substantial additional costs on losing parties, whether in relation to success fees or insurance premiums. Those costs add to the already significant costs of civil litigation and allow for risk-free litigation by claimants and what I earlier described as inflation in our legal system.

I have explained the rationale for our proposals and why we consider that they should apply across the board without exception, and I do not propose to repeat those arguments now. The amendment seeks to allow different recoverability in different classes of case. We are implementing a package of reforms, not all of which are contained in the Bill. This package has been carefully put together to be fair between claimants and defendants.

I understand the noble Lord’s intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now on what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this Bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 20th March 2012 Lords Chamber

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

My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.

However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.

On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.

I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.

I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.

The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.

We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.

That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.

I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.

The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.

Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.

I feel strongly about this—

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[Lord Beecham]

My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.

I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.

[Lord McNally]

My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.

Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.

On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.

I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.

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[Lord Beecham]

My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.

I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.

[Lord McNally]

My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.

Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.

[Lord Beecham]

Does the noble Lord want to revert to membership of the young socialists a little bit?

[Lord McNally]

I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.

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[Lord Beecham]

My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.

Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.

Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.

[Lord McNally]

My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.

The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.

In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.

I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.

On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.

On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.

My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.

Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.

I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Wednesday 14th March 2012 Lords Chamber

[Lord Beecham]

My Lords, in fairness to the Government, they did not do what the noble Lord, Lord Martin, suggested. They did not put the whole report on the table and say, “We will have it”, but chose which bits suited them and left out the part of the report that dealt with legal aid, which we have debated at some length, among other matters. However, that is a little beside the point.

I support the noble Lord’s amendment, if only because subsection (4), which it seeks to delete, effectively locks and bolts the door to any subsequent change to the provisions on success fees without primary legislation. That is a formidable obstacle. The subsection is unnecessary and the Government could have dealt with the matter in a way that would have allowed them or a subsequent Government to review the situation without primary legislation. The way that the Bill is drafted does not allow that, and for that reason, if no other, I support the noble Lord’s amendment.

[Lord McNally]

Did the noble Lord, Lord Martin, say “crabby”? My goodness; I have always been thought of as a little ray of sunshine. Of course we have not accepted the Jackson report lock, stock and barrel. We have honed and polished it, and brought it to the House. We have of course accepted the proper role of this House, which is to revise and advise. I listened with a good deal of sympathy to the experience of the noble Lord, Lord Martin, although I have to say that I am not a lawyer, and I would have taken up the case of Christopher Jefferies, never mind anyone else. I think it was the Daily Mirror that accused him of being a Liberal Democrat, which would have been—I had better not say it.

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[Lord McNally]

My Lords, I hope that my reply to the previous debate has shown our gritty determination to keep to the central architecture of the Bill. As I have explained, abolishing the recoverability of success fees and insurance premiums from the losing side is a key government reform which will reduce the substantial additional costs paid by defendants under the current regime. The reforms are intended to apply across all areas of civil litigation, and the Government do not believe that any exemptions are necessary, fair or desirable. If the amendments were accepted, claimants in these types of cases would have no incentive to control their lawyers’ costs. That cannot be right. Proposals to control legal costs should apply across the board. I urge the noble Lord to withdraw his amendment.

[Lord Beecham]

I decline the request to agree with the Minister. There is little incentive for the Government as a defendant to settle cases when they do not have the additional incentive of a success fee being awarded against them when they lose. However, in the circumstances I beg leave to withdraw the amendment.

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[Lord McNally]

Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one’s own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government’s position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government’s reform and we will strongly resist it.

In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers’ liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.

I urge the noble Lord not to press the amendments.

[Lord Beecham]

With my customary reluctance, I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, I strongly support the noble and learned Lord’s amendment, which makes every conceivable sense from the financial to the legal and logical. I have to say that I do not at all blame the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace, but it is a matter of some concern that those responsible were not courteous enough to ensure that the noble and learned Lord, Lord Lloyd, who, after all, is one of the most distinguished Members of your Lordships’ House, should have been supplied with a copy of the document lodged in the Library. Indeed, had I not chanced across it myself today and given him a copy, he might not even at this stage have known of its existence. That is not good enough and I hope that Ministers will have a word with the appropriate members of their staff.

More significantly, the noble and learned Lord makes an unanswerable case for this amendment and I hope that the Minister will be able to say that the Government will respond sensibly. It would assist justice and assist the finances. It seems to me that it would be absurd for the Minister not to accept this amendment.

[Lord McNally]

My Lords, if there has been any discourtesy to the noble and learned Lord, Lord Lloyd, I absolutely apologise and take responsibility for it. I should like to put that on the record. The noble and learned Lord has described our proposal in the past as expensive and inefficient, and has made much of the difference between his and the Government’s figures. As he knows, we have now put our calculations in the Library of the House and I can assure your Lordships that we have given careful consideration to the calculations that the noble and learned Lord has provided. In addition, I have met with the noble and learned Lord, as have my officials, and we have swapped calculations. We have explained that we believe that he is omitting some vital costs from his calculations.

The method we have used is open and transparent. Taking costs to legal aid and to public sector defendants, we believe that the costs to the public purse of the proposals from the noble and learned Lord, Lord Lloyd, to fund expert reports by legal aid is about £17.5 million a year, whereas the cost to the public purse of our proposal for recoverable insurance premiums is between £18.5 million and £19.5 million. The result is likely to be an additional cost of about £1 million to £2 million.

I understand that the noble and learned Lord does not accept our calculations, but we do not accept his. This is a matter on which we have to take a judgment. These additional costs, as he has said, will enable more people to gain access to justice than under his proposals, which are limited to those who are financially eligible for legal aid. For this reason, and for reasons that are set out in more detail in the paper in the Library, we believe that the powers in Clause 45 are the best way to support victims of clinical negligence in a relatively inexpensive and fair way. I realise that this is a clash of figures and a clash of judgments, but I am making my judgment and we are willing to defend it in this House. At this hour, I would urge the noble and learned Lord to withdraw his amendment.

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[Lord Beecham]

My Lords, we return briefly to the question of environmental cases which we also discussed under the amendments tabled by the noble Lord, Lord Thomas. The distinction between these amendments and the previous amendments are that, in this case, the amendments provide the Lord Chancellor with the opportunity to provide by regulation for the changes that are sought; namely, that in respect of Amendments 139 and 140, disbursements related to ATE insurance would be recoverable and, under Amendment 142BC, that qualified one-way costs-shifting would apply, as it should, to these cases. That was recommended by Lord Justice Jackson and I cannot see why the Government would differ from his view. Therefore, for environmental claims and judicial reviews connected with them, QOCS would apply, as indeed they should. This is an important area of policy and potential litigation. As the noble Lord, Lord Thomas, pointed out fully, it needs to be addressed. As I have said, we prefer this iteration of the remedy, but in one way or another the Government should be seen to move in the direction of facilitating these claims under the conditional fee arrangement scheme. I beg to move.

[Lord McNally]

My Lords, Amendments 139 and 140 seek to allow the continued recoverability of ATE insurance premiums in environmental claims to cover the costs of expert reports. Environmental claims will generally involve a number of claimants who could contribute towards the costs of any reports. Alternatively, the reports could be funded under a “before the event” insurance policy should claimants have one, or under an “after the event” insurance policy should claimants wish to purchase one. Further, the claimant’s solicitors might agree to fund disbursements in exchange, perhaps, for an increased success fee. A variety of means of funding disbursements are available in environmental cases without the need for an exception for recoverable insurance premiums.

So far as the other side’s costs are concerned, the Government’s view, as I explained in Committee, is that a protective costs order ought to provide sufficient costs protection in respect of the other side’s costs in environmental judicial review cases, as we set out in our recent consultation. Under a PCO, it will be clear from the outset what costs the claimant will have to pay if the claim is unsuccessful. The order will also ensure that some contribution is made towards the costs of public bodies that have successfully defended the claim. As I said earlier, environmental claims will generally involve a number of claimants and it is right that they should contribute together to costs, at least to some extent. The Government remain convinced that this is the right approach in these cases. We will shortly set out the details of the way forward in the light of our consultation. I hope, therefore, that the noble Lord will withdraw his amendment.

[Lord Beecham]

I beg leave to withdraw the amendment.

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[Lord McNally]

My Lords, I think that there is broad agreement across the House about the need to ban referral fees in personal injury cases, as we propose in Clauses 54 to 58. However, there is some disagreement about how it should be done, as this debate has shown.

It may be helpful if, in reply, I deal separately with those amendments with which we have some sympathy and those with which we do not. The Government agree with the intention behind Amendments 146A and 148A in the name of my noble friend Lord Hunt of Wirral. I give the House a commitment that we will bring back amendments at Third Reading to address the issues raised by those amendments. However, the Government cannot agree with Amendments 142E and 146. We believe that it is not in the public interest for payments in receipt of referral fees to be allowed in any personal injury cases, regardless of whether the recipient is a solicitor, a charity, a trade union or some other party. If the provision applies to solicitors who pay referral fees, it must also apply to the not-for-profit organisations which deal with them.

The Government intend to ban the payment and receipt of referral fees in all personal injury cases, and we are not persuaded that there should be special treatment for not-for-profit organisations, or for solicitors dealing with trade unions, to exempt them from the ban. However, trade unions will of course still be able to refer cases, without payment, to those best able to pursue them. Nothing in the clauses prevents lawyers providing services free of charge to registered charities.

A number of points were made in the debate. The noble Baroness, Lady Deech, made a powerful case in favour of what we are trying to do on referral fees. She referred to a case, which we all remember, which shows how the best of intentions can be misused when trying to deal with a problem. I say to the noble Lord, Lord Martin, that I certainly advocate the value of trade union membership, but that there is a danger of trade unions, charities and others having a sweetheart relationship with a firm of solicitors based on referral fees.

My noble friend Lord Hunt of Wirral asked me how much of the excess litigation costs can be taken out of the system. My right honourable friend the Prime Minister has announced that we will be extending the road traffic accident scheme to cover claims up to £25,000, and to cover employer and public liability cases. As part of that process, the Government intend to make an objective assessment of the existing costs involved in RTA schemes, and we expect fixed recoverable costs of £1,200 to be reduced significantly as a result. The new fees will come in when the Jackson reforms in Part 2 of the Bill and the ban on referral fees are implemented in April 2013. Although I cannot give a precise figure, the aim, as in other parts of the Bill, is to squeeze out of the system excessive costs, which are undoubtedly there.

I hope that, in the light of those responses, the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, I will be withdrawing my amendment. I must disabuse the noble Baroness, Lady Deech, with whom I shared a law course at Oxford, on the question of the political aspect of union funding. Union funds for political purposes, of course, derive from their political funds and not from general income. The noble Lord, who has a long memory of these things, is acknowledging that, for which I am grateful. It is not just a question, however, of fees, as I have indicated. Other services offered to members, whether they be of trade unions or other organisations, would be caught, apparently, by the Bill as it currently stands. I cannot believe that that is really part of the Government’s intention. Not all unions have an arrangement of this kind, where a referral fee is paid, but unions do have extensive and expensive legal departments which have to be supported. It does not seem unreasonable that those organisations—and, indeed, other organisations; charitable organisations—should have a scheme. I agree that the noble Baroness has identified a particularly abusive situation which, of course, has been rightly dealt with, but that is very much the exception. Having said that, we will, up to a point, be returning to this matter on the next day of Report in a slightly different context. I beg leave, therefore, to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Monday 12th March 2012 Lords Chamber

[Lord Beecham]

My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:

“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.

He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,

“whilst assisting in defending the possession proceedings themselves”.

Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.

Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.

It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.

The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.

Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:

“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.

It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.

Finally, the Minister observed:

“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]

However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,

“landlords will not agree to delay the possession matter unless they are assured that”

the tenant,

“will be actively assisted in resolving the benefits problem”.

That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.

The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.

[Lord McNally]

My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.

Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.

Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.

In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.

To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.

On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.

The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.

We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.

--- Later in debate ---

[Lord McNally]

My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.

[Lord Beecham]

Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.

--- Later in debate ---

[Lord McNally]

My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.

[Lord Beecham]

My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.

[Lord McNally]

No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.

As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.

The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.

I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.

[Lord Beecham]

I am most grateful to the noble Lord.

[Baroness Hamwee]

I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.

--- Later in debate ---

[Lord Beecham]

My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.

Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.

I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.

[Lord McNally]

My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.

My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.

--- Later in debate ---

[Lord Beecham]

Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?

[Lord McNally]

I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.

However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.

Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.

I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.

I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.

--- Later in debate ---

[Lord McNally]

Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.

[Lord Beecham]

My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.

[Lord McNally]

Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Wednesday 7th March 2012 Lords Chamber

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

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This requires them to set out in writing why they disagree with the admissions decision and why they think that the admissions arrangements have not been followed correctly. These are not usually legal arguments. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors setting out their reasons for challenging the exclusion. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the independent review panel. The Department for Education will fund the children’s legal centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination and legal aid is being retained for advice and assistance in such cases.

Advice is also available on admission and exclusion matters from the Advisory Centre for Education and the Children’s Legal Centre. Education negligence claims have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid on only those money claims which concern a significant breach of human rights, an abuse of a position of power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill’s scope.

[Lord Beecham]

My Lords, the noble Lord, Lord Faulks, has made a valid point about education negligence cases. I think the consultation revealed that some respondents were quite supportive of excluding that, which I quite accept would be a sensible measure. The Government’s report on the key issues raised referred to suggestions by others that often difficult admission cases arose where clients were, for example, Travellers. The exclusion of education admission matters could prevent discrimination claims from being brought because it would take legal advice to identify that the clients had grounds for discrimination claims. Equally, lack of early advice could ultimately lead to the more expensive procedures of judicial review.

It is unfortunate that the Government do not at this stage wish to move. I clearly will not press the matter and hope that it can be kept under review perhaps, more particularly, in conjunction with the department rather than simply by the Ministry of Justice. As I understand it, there has been a little disconnection between the two on these issues thus far. For the future, I hope that that is something that could be repaired. In the circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

My Lords, stakeholders have drawn it to our attention that the definition of community care service in the Bill is incomplete. We are expanding it to ensure that currently funded legal services in relation to community care remain eligible for funding under the new regime. These amendments will bring within the scope of civil legal aid services provided in relation to Section 2 of the Carers and Disabled Children Act 2000, which covers community care services to carers, and Part 1 of the Housing Grants, Constructions and Regeneration Act 1996, which covers facilities grants to enable disabled people to live independently in their homes. I beg to move.

[Lord Beecham]

My Lords, we welcome the Minister’s amendments and are glad that an error has been repaired.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Monday 5th March 2012 Lords Chamber

[Lord McNally]

My Lords, let me make it absolutely clear from the start that my spirits are lifted when I see the noble Lord, Lord Howarth, rise to his feet. In all seriousness, I believe that he is a very effective parliamentarian. I say that as a compliment. He researches his interventions, his arguments are well marshalled, and it is always a pleasure to respond to him. That is particularly the case this evening, when we have had a glimpse of what might have been: the Howarth Chancellor of the Exchequer Budget. There would be all the savings and cuts and the only thing that would stop Chancellor Howarth getting the country a triple C rating would be the presence of a triple D rating. Nevertheless, it is always a pleasure to respond to him, and that is why I intend to take at least 25 minutes to deal precisely with the points that he has made.

As the noble Lord, Lord Beecham, very frankly, pointed out, Amendment 7A would require a post-commencement impact assessment in the same terms as the pre-commencement impact assessment, which we discussed under Amendment 6. I do not propose to rehearse the same arguments again here, as the real issue of this amendment concerns its relationship with Amendment 161. That amendment would, as has been explained, place a time limit on the effect of the primary legislation, and any revival of its provisions would require the approval of both Houses.

I ask the noble Lord, Lord Beecham, to consider for a moment the legal, contractual and practical implications of the legal aid scheme under this Bill lasting for only three years unless Parliament’s approval were reaffirmed at that point and thereafter annually. That would undermine the approval that Parliament may give by seeking re-approval inside a period shorter than most governmental terms. I do not really think that this proposition for a sunset clause in this Bill is practical. I hope that the noble Lord will reconsider the wisdom of this amendment and withdraw it.

[Lord Beecham]

My Lords, it is a profoundly wise amendment, but nevertheless I beg leave to withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Thursday 9th February 2012 Lords Chamber

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

My Lords, the noble Lord, Lord Beecham, has already outraged the protocol of this House by recognising people present beyond the Bar, but I do not think that he will be taken away to the Tower for that breach because it is good that Members of the House are aware that Jane’s parents are present to see us in action. I am afraid that the other night they had the experience of seeing the Lords in action that delayed this debate, but it is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.

Amendment 178ZZA creates a right of appeal for the prosecution against a Crown Court decision to grant bail. It does so by extending the existing powers in the Bail (Amendment) Act 1993, which currently provides for a right of appeal against bail granted by a magistrates’ court. That appeal is to the Crown Court. Under Amendment 178ZZA, the avenue of appeal against a Crown Court decision would be to the High Court.

As we have heard from the noble Lord, Lord Beecham, this is a matter that has been the subject of a campaign by Jane’s parents following the release on bail of Jonathan Vass by the Crown Court, despite representations from the Crown Prosecution Service. We considered this matter very carefully. We took account, on the one hand, of the fact that a right of appeal would necessarily impose an additional burden on the High Court. On the other hand, there was strong support for change in the other place, as we have heard, and the Director of Public Prosecutions has made it clear that he too is in favour of such a change in our law.

Our conclusion was that without calling into question the correctness of decisions made by Crown Court judges in the vast majority of cases, it is not right that such decisions should be beyond challenge. We are persuaded of the case for changing the law in order to ensure that victims and their families, and the public at large, are protected.

The effect of the provision will be that the decision to appeal must be made immediately, before the defendant has been released, and as the defendant would be held in custody pending the appeal, the appeal must be heard very quickly. Listing cases at such short notice before a High Court judge clearly has resource implications, and it is important that the right of appeal should be used sparingly. This will be recognised in the guidance that the Director of Public Prosecutions will issue to his staff, which will require a decision to appeal to be approved at a senior level.

The most notable difference between our Amendment 178ZZA and Amendment 178 moved by the noble Lord, Lord Beecham—I am grateful that he intends to withdraw it—is that ours is shorter and does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. So if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts. I therefore commend Amendments 178ZZA and 178ZZB to your Lordships' House.

It is my responsibility as the Minister to put on the record the technicalities; hence, some of my remarks may seem gobbledegook to those not in the Chamber. However, I can assure the House that what the Government are doing, supported by Her Majesty's Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.

[Lord Beecham]

My Lords, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

My Lords, this is a technical amendment. I beg to move.

[Lord Beecham]

It would appear that I am in some danger of becoming a repeat offender when it comes to breaching protocol. I apologise to the House.

My only concern about the technical amendments in this group is the insertion in Amendment 178ZAZB of the word “accused” before the word “charged”. I appreciate that it is intended to correct what was described as an accidental gap in replicating earlier provisions, but it concerns me that we may apply electronic monitoring to people who have not been charged but merely accused of an offence in another jurisdiction. I wonder whether it is the right approach. Perhaps the noble Lord will want to think further on that. It strikes me as a little odd, in the same way as the previous matter we discussed struck me as odd. I may be entirely wrong but it seems to jar with the notion that a simple accusation would suffice to allow somebody to undergo electronic monitoring.

[Lord McNally]

My Lords, one of the uses of Committee is to allow noble Lords to scrutinise and to seek clarification. The noble Lord’s point is not covered in my notes. The amendments in this group are intended to be minor and technical. They set out a requirement for electronic monitoring in extradition cases that is consistent with its use under the Extradition Act 2003. Clause 88 is intended to create a test that is equivalent to that in Clause 87 which applies to young people who are charged with or convicted of an offence. “Accused” is the word used in the Extradition Act. If we did not change the wording of the Bill to match, we would create a lacuna whereby the courts would have only limited remand powers over an individual who was being extradited before being charged. I will clarify the noble Lord's point about the use of electronic tagging and write to him.

--- Later in debate ---

[Lord Beecham]

That is precisely my point. The amendment rightly envisages a duty to refer to the Parole Board, but on the face of it it looks as though there is a duty of release ab initio. That is not the noble and learned Lord’s intention—and I say this with great respect, because of course he is a very eminent and learned judge—but it might have assisted his case if it had been put in that way. That point in a sense echoes the point made by my noble friend Lord Borrie.

It is sensible to restore a situation in which a release after 30 years can be contemplated and, after due process, properly agreed. If the Parole Board adjudges that it is safe to release someone, that should be the Secretary of State’s duty at that point. In fact, relatively few people are serving these sentences—I think there are 40 prisoners, and that 20 have been sentenced in that way in the last 10 or 12 years as a result of their trial and the conditional decision at the time—so I think there is a way forward on this, with a slight modification of the way in which the amendment is phrased, and I hope that the Government will look sympathetically on it while clearly bearing in mind that there will be some prisoners for whom, in the end, there will be no hope of release. One hopes that there will not be many in that category, but there will be some, and that ought to be recognised from the outset.

[Lord McNally]

My Lords, the noble Lord, Lord Beecham, referred to the unanimity of view in the House during this debate. I sometimes think that perhaps a joint meeting of both Houses would be interesting when we discuss these issues. Nevertheless, this House has a long and proud history of providing a platform for penal reform, and it has certainly lived up to that reputation today.

I make one or two preliminary comments. The noble Baroness, Lady Stern, referred to the campaign to abolish the death penalty. Like many in this House I am old enough to remember that campaign, and I remember that part of it, which swung many MPs, was the proposal that life would mean life. It has always been a problem area, particularly for those who have committed the most horrific crimes.

The story that the noble Lord, Lord Ramsbotham, told was very encouraging in that it told of someone’s capability do good, even after the most horrific crimes. However, that capacity to do some good would not convince me to release a dangerous person into the community—and it is that test that has to be passed. I would hope that even those who spent the rest of their lives in jail would find within their confinement a capability to do good.

I think that we will return to this theme on a number of occasions in the next hour or two, as various amendments come up. The noble Baroness, Lady Stern, asked what sort of penal system and what sort of values we should have, and the noble Baroness, Lady Mallalieu, called for courage. Courage is certainly needed, but so is a practical use of the art of the possible. Penal reform is always a balance between humane treatment of those who are in prison, concern for the victims of crime and the retention of public confidence in our system of justice. Unless we can convince the public of the elements of punishment and public protection within the system, we will not get their buy-in to rehabilitation, which as I have often said from these Benches is very much part of what I and the Lord Chancellor see as built into the system. However, unless we can carry colleagues and the public with us and retain public confidence, we will not get the kind of reform that we want. I freely acknowledge that carrying through some of these reforms is an exercise in the art of the possible in what will win the confidence of the other place and the public.

As the noble and learned Lord said in introducing his amendment, things were different some time ago. One good thing to my mind about recent reforms was that all tariffs are now judicially determined. I am one of those—and I share it in other cases as well—who thinks that we should rely on judicial judgment in these matters. The imposition of minimum terms and whole life orders is now a matter that is exclusively for the judicially. I was very interested in his views on the judgment of the European Court of Human Rights. I tend to agree with the noble Baroness, Lady Stern, that when the Court gets it right it does not get much coverage. I am sure that if it reverses its decision, it will be page 1 again. Nevertheless I was a little worried that both the noble Lord, Lord Pannick, and the noble and learned Lord seem to think that a majority verdict was somehow of less value. A verdict is a verdict, and a win is a win. I am sure that he has been on the winning side a few times in those circumstances—I knew I was tempting fate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Thursday 9th February 2012 Lords Chamber

[Lord Beecham]

My Lords, the Front Benches are occupied by somebody from the lowest levels of the legal profession and somebody who is even lower because, as we were told the other day, he has done only a short period of legal education. I do not know about the Minister, but I find myself oscillating between the very eloquent, articulate and lucid explanations of the various positions. I was totally persuaded by the noble and learned Lord, Lord Lloyd—until I heard the noble Lord, Lord Carlile. Then—with all due respect to the noble Lord, Lord Blair—I was made to think more by the noble Lord, Lord Thomas. On balance, I am grateful that I was not a member of a jury to be addressed by any of these three eminent lawyers because I am not sure we would have reached a verdict even now—at least I would not.

On balance, I am persuaded by the arguments of the noble Lord, Lord Carlile, although I am concerned—as everyone in this House should be—at the very disturbing statistic that the noble and learned Lord, Lord Lloyd, adduced about the number of people held on life sentences in this country being greater than that for the whole of the rest of Europe. That is not something about which the English system should feel at all complacent. Nevertheless, for what it is worth—which is clearly not much—I am persuaded by the argument that the noble Lord, Lord Carlile, advanced. It remains to be seen whether it endorses the position that the Minister will give us in a moment.

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

I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.

I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.

I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.

I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.

I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.

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[Lord Beecham]

Indeed, but the Government have, as I understand it, no real plans to deal with the 3,000 people who are still held on indeterminate sentences. My whole point is that just as the previous Government did not invest in this sufficiently, this Government are in danger of doing the same. Across your Lordships’ House there would be a view that this investment would repay itself in financial terms as well as in social terms.

[Lord McNally]

My Lords, as the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, mentioned, IPP was identified long time ago as a train crash in waiting. I take pride that this Government have taken forward this reform. I note that, as always, there are those who say it does not go far enough—and that is the nature of reform. I was also pleased that there was a certain cross-examination of the noble Lord, Lord Beecham, because he is such a reasonable and likeable person that one would think he was going to slip past the responsibility that the previous Administration have to carry for bringing in these reforms.

We are trying to disarm a time bomb and it has to be done in a careful and measured way. This afternoon, we have heard unanimity of views on prison reform. I have to say, in trying to argue the case for prison reform to both Houses and the public at large, it would be easier if the Labour Party, for which I retain a residual affection, had resumed some of its old and traditional campaigning for penal reform, instead of indulging in a kind of “We’re tougher than you” arms race with those who need to be convinced of the case.

That is a fact of modern political life. The Labour Party of Sydney Silverman and Roy Jenkins is perhaps not here any more. Successive Labour Home Secretaries were very keen not have the term “liberal” attached to their term of office. Thus we face a problem such as IPP. We are trying to deal with the issue. The National Offender Management Service prisoner co-ordination group is chaired at director level. It certainly does not meet the catchiness of the request by the noble Lord, Lord Ramsbotham, for a named person, but that group is trying to manage the specific problem of IPP prisoners. The new specification for offender management, which will provide for the prioritisation of resources based on risk, will be phased in from April 2012. It means that the higher the level of identified risk or the likelihood of reoffending, the higher the level of service that will be provided. In particular, that will result in improved targeting of rehabilitative intervention for IPP prisoners.

To take up the point made by the noble Lord, Lord Dholakia, the key rehabilitation stage for those prisoners is being able to demonstrate in open conditions or temporary release that they have learnt new behaviour. NOMS has identified special issues surrounding waiting lists for IPP prisoners who have been assessed as suitable to be held in open conditions. Work is under way to improve the speed of allocation to open prisons, and a temporary release policy is being reviewed to consider whether suitable prisoners might be given access to temporary release from closed prisons.

The Government took the view from an early stage that IPPs must be replaced, and we have brought forward proposals in the Bill to do so. Once those provisions are commenced, no further IPPs can be imposed, even for previous offending. That is a major step forward. We are now concerned with those who have or will receive an IPP sentence prior to abolition. A range of amendments have been tabled on the subject, which we are now debating. The noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, have tabled amendments proposing that the Parole Board release tests be changed. Their amendments also propose the conversion of current IPP sentences to automatic release sentences; that cases are referred back to the Parole Board every six months; and that the Secretary of State should be required to demonstrate that he has made programmes available to prisoners who are refused parole.

The amendment from the noble Lord, Lord Wigley, proposes that those offenders should either have access to a relevant rehabilitation programme or that their sentence be rescinded. By that, I presume he means that they should be given automatic release if programmes are not available. The noble Lord, Lord Ramsbotham, and other noble Lords have asked through another amendment for the Government to plan release for those prisoners. I should make it clear that, as the statute stands, the Government could not implement any such plans, because the power to direct release would remain with the Parole Board. Again, a conversion to automatic release would be required.

Let me start with the question of the conversion of IPP sentences. We do not think that it is right or appropriate retrospectively to alter sentences that were lawfully imposed by the court simply because a policy decision has now been taken to repeal that sentence. That is what would be required to make release automatic for those prisoners. Generally, sentences already imposed are not substantively altered by subsequent legislation. In this case, it would be particularly difficult, as the court would have to impose the sentence with risk management issues in mind.

Several of the amendments relate to the availability of programmes for IPP prisoners. There is rightly concern that those currently serving IPP sentences should be supported in progressing their sentence and achieving release on licence. The National Offender Management Service is using a range of measures to improve the progression of those prisoners through sentence, including improvements in assessment, sentence planning, delivery and the parole review process. We continue to monitor outcomes to ensure that further improvements are identified and implemented.

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[Lord McNally]

My Lords, it is very difficult debating against the noble Lord, Lord Beecham. He is such a reasonable man who puts forward such reasonable arguments. I sometimes think that surely he must be on the Lib Dem Benches. But no, there he is.

[Lord Beecham]

Perhaps the Minister should seek treatment for this condition of confusion.

[Lord McNally]

I asked for the House of Commons Hansard for 1 November. I could have picked quite a few but I shall pick one for the House to catch the flavour. As I have said, I have been faced with such unanimity today. Mr Sadiq Khan said:

“No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he”—

the Lord Chancellor—

“is risking the safety of communities in each and every constituency”.—[Official Report, Commons, 1/11/11; col. 793.]

You can imagine him banging the Dispatch Box and a growl of “Hear, hear” coming from behind him. That is the difficulty we have in this. Quite frankly, if the noble Baroness, Lady Mallalieu, or perhaps my noble friend, was dishing out awards for political posturing, it would not be to only one side of the House or to this end of the corridor. I am also a little—

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[Lord Beecham]

Perhaps the Minister could indicate what assessment has been made of the effect of the new extended sentence provision on prisoner numbers and the time that prisoners will spend in custody, as well as the cost. In so far as the indeterminate sentence will, one hopes, reduce numbers when various changes have been made, this measure is likely, like the mandatory provision, to drive up both numbers and costs. Has an assessment been made of that? If it leads to extra costs, how will the Government manage the process? The noble Lord is to be congratulated on the amendment. The current provisions simply do not make sense in the context of what purport to be the Government’s objectives.

[Lord McNally]

My Lords, perhaps I may clarify the point raised by my noble friend Lord Dholakia. The two-thirds release point applies only to the new extended sentence. The court must specify both the custodial term and an extended licence period when it imposes an extended sentence. The offender is released or can apply for release at the two-thirds point of the custodial term. The extended licence will start when the custodial term is concluded, so offenders will receive an appropriate licence period regardless of the point during the custodial term at which they are released. I listened to my noble friend’s idea about discretion. This is not something that courts would have discretion on. They will decide on the appropriate custodial term plus an appropriate extended licence. Yet, as always with suggestions from my noble friend, I will ponder this one between now and Report.

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[Lord Beecham]

My Lords, on a point of clarification, the Minister referred to the impact assessment disclosing that 2,500 fewer people would be in prison. Does that relate to the overall package or to this particular amendment? That was the point that I was raising.

[Lord McNally]

It relates to the overall package and, in that wonderful save-all term, the long term. As we are already seeing, predicting prison numbers is not an exact science.

[Lord Beecham]

Perhaps not now, but could the Minister advise me on the implications of this amendment in terms of numbers, as opposed to the generality to which he has referred?

[Lord McNally]

I do not have a specific number, but I will write to the noble Lord and make it available to the House.

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[Lord Beecham]

My Lords, this amendment is perfectly sensible. Before we get to Third Reading it would perhaps be helpful, if it is at all possible, to have a clear indication of how the Government propose to proceed. Presumably it will not be long before the affirmative resolution procedure is put into place once the Bill is enacted, and that might just allay some doubts around the House and outside it about what is likely to happen. Subject to that, we certainly take the view that it is sensible to proceed on the lines set out in the amendment.

[Lord McNally]

I am grateful for that. As to what I was watching on Saturday afternoon, being a gentle soul, I take the view that rugby is a gentleman's game played by hooligans. I am not as keen on watching it—the violence is too much. I am glad, however, that everybody has noticed the point of Clause 117. It goes back to what I said before in that analogy about disarming the time-bomb. We need a little flexibility and a chance to see how the present probation rules apply, but this gives the Secretary of State the opportunity to adjust what we are doing in the light of the experience of the overall reform of IPP. I am therefore grateful for the support from all sides of the House and I hope that Clause 117 will stand part of the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 7th February 2012 Lords Chamber

[Lord Beecham]

My Lords, we on the opposition Benches support both amendments and congratulate the noble Lord, Lord Wigley, and his cosignatories on bringing them forward. I have not the slightest doubt that any court presided over by the noble Lord, Lord Faulks, would not only know what to do but actually do it. However, that is not necessarily universally the case, and the Justice Select Committee in July 2008 raised concerns about the fact that pre-sentence reports were not requested frequently enough. It also raised doubts about the adequacy of those reports when they were presented; so there is clearly a problem in some courts some of the time, and it is sensible to make provision along the lines of both amendments.

An amendment precisely along the lines of the second amendment was moved in the Commons by Helen Goodman MP. It is surely essential for the courts to give due consideration to the effect of sentencing on dependants, not only from the point of view of those dependants but—given that we are necessarily talking about costs all the time—to avoid the costs that may arise from, for example, having to take children into care or the long-term damage that may be done to families, particularly but not exclusively in the context of mothers being sentenced to imprisonment.

The noble Lord, Lord Wigley, rightly referred to the fact that there is a high suicide rate among women prisoners. There is also an alarmingly high rate of self-harm. After all, one-third of women prisoners are single mothers; only 9 per cent of children with mothers who are serving custodial sentences are looked after by their father. That is not to say that there may not be other family members who take care of some children in those circumstances, but it is clearly a material factor.

It is of great concern that more than half of women prisoners suffer from severe mental illness, and half have suffered from domestic violence. They are clearly very damaged women. One might feel that children in that family are already vulnerable and exposed to risk. Notwithstanding the experience of my noble friend Lord Clinton-Davis, it is clear that women are not treated in exactly the same way in sentencing, as a higher proportion of first-time offenders among women are sent to prison than men and a higher proportion of women are sentenced for non-violent offences—both significant differences. There is a problem about sentencing of women, and we will be considering that under later amendments. Bearing in mind the higher proportion of those women who have dependent children, the amendment is extremely timely.

The noble Lord, Lord Howarth, raised an issue about the practicality of the situation and cited the experience of last summer, with courts sentencing people to custodial sentences in the middle of the night. It may be that custodial sentences were required. The question arises whether it was necessary for those sentences to take immediate effect without proper inquiry into the background circumstances. I would argue that that was not necessary, whatever the ultimate sentence may have been.

My noble friend Lady Corston has reported extensively on the position of women prisoners. Her report will no doubt be touched on in conjunction with later amendments. The spirit of that report should surely inform the Government’s attitude to these two amendments, which we heartily commend.

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

My Lords, this has been an extremely useful debate and one that has not necessarily followed previous structures where the Minister sits there under fire from all parts of the House. It has been interesting to hear the various experiences, particularly of noble and learned Lords and their opinions on whether the amendments are necessary or add to present practice.

The Criminal Justice Act 2003 sets out when a court must or should request a report. Amendment 175 does not address those provisions, which relate to the duty to explain a sentence after it has been decided. A pre-sentence report is designed to inform the judge or magistrate before they decide on a sentence, while the clause relates to duties to explain the sentence that is being imposed.

Nevertheless, under the system now in place, a pre-sentence report to the court by the probation service sets out a recommendation for sentence based on the background and the risk posed by the offender. The report will set out any factors relevant to the offending. That will include a history of alcohol or drug dependency or any home life factors that might be relevant. That report is, in effect, what one would understand by the term “social history”. Of course, the court would also have in front of it a print-out of previous convictions and it would decide which of these were relevant to the case.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 7th February 2012 Lords Chamber

[Lord Beecham]

My Lords, it took the good Lord seven days to create heaven and earth and it has taken the noble Lord only a day longer in Committee to come up with something on which I can offer him the Opposition’s wholehearted congratulations. We are very pleased with the amendments, which cover two points: the alignment of the starting point of sentencing to cut across all the categories; and the inclusion of transgender people in the scope of the Bill.

Yesterday’s Guardian was a disturbing edition, showing that at the moment disabled people generally are being singled out for victimisation in society as a whole. I hope very much that the signal that today’s amendment gives will help to counter that disgraceful and worrying development. I congratulate the Minister again on bringing forward the amendments.

[Lord McNally]

My Lords, to respond to the noble Lord, Lord Ramsbotham, I cannot imagine that actions such as he described are not already covered by prison regulations, but I will examine that and write on the matter.

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[Lord Beecham]

I think that that is right, and indeed the noble and learned Lord, Lord Woolf, said very much the same. It is quite possible, within the ambit of the amendment, to achieve that objective. There may well be cases where what some call the “short sharp shock” may work. I think it will work in probably only a relatively small number of cases, but the option should certainly be open.

As I say, I have some reservations about the second amendment, but I wholly endorse the first one. This is a matter that we need to continue to evaluate, but above all we need to ensure that the probation service in particular is given the resources that it needs to work with offenders so as to avoid not only the social and individual harm that is done but also the enormous cost to the public purse of reoffending, where the rates remain unduly high.

[Lord McNally]

My Lords, I am extremely grateful to all those who have contributed to this debate. It has been an extremely useful one. I am also grateful to the noble Lord, Lord Judd, for reminding us that this is the 200th birthday of Charles Dickens, who gave us the most well-known phrase about the law: “The law is an ass”. He also gave us the best example of the futility of litigation in Bleak House. Dickens was certainly not in awe of the law, and very few of his legal characters are particularly warm.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Wednesday 1st February 2012 Lords Chamber

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

My Lords, I am most grateful to the noble Lord, Lord Thomas, for his usual thorough presentation of these amendments and for sending me this opinion of learned counsel, which, as he rightly said, was delivered only 24 hours ago. Even though, as the noble Lord, Lord Bach, will know, the Ministry of Justice is one of the most efficient and speedy departments in Whitehall, the matter is still in the hands of my advisers, and I am sure that we will take it on board. In passing, I should say that I had to clear another piece of paper the other day about asking the advice of learned counsel, and I saw just how much it costs to ask for such advice, so I thank the noble Lord for such an expensive gift.

I was also interested in the confession of my noble friend Lord Lester about accepting success fees. As the debate has unfolded, it has occurred to me that this is indeed a money Bill, but perhaps not in House of Commons terms. Let me also deal with another canard or slur that has been put across the Chamber from the noble Lord, Lord Beecham: that the Aarhus convention is something new to the Government or to government Ministers. Perhaps I can draw his attention to the fact that on 19 October, we in the Ministry of Justice sent out a consultation paper, entitled Cost Protection for Litigants in Environmental Judicial Review Claims, with the specific aim of enabling the UK to implement its obligations under the Aarhus convention. Yet again, when the facts are known, it is clear that the Government are on the case, on the ball and moving forward, despite the attempts of the Opposition to say otherwise.

[Lord Beecham]

It is said that they are in breach of their obligations under the convention.

[Lord McNally]

As I said, we are consulting. I shall return to the question of getting it right. The problem is that the noble Lord, Lord Beecham, is impetuous in so many ways, whereas this Government are determined to get things right—you can see the advice that I get on getting things right.

On Monday, we spent some time discussing QOCS and we heard the concerns of my noble friends and others that the matter should appear in the Bill. This afternoon, I do not want to repeat the more general arguments on these matters, but we need to get the details and the rules right to ensure that they are tailored properly in respect of the category of proceedings to which they apply. For example, in personal injury cases, it may well be that there should not be an initial financial test. However, the position is likely to be different for defamation, and perhaps for environmental cases too, which typically involve more than one claimant—sometimes many claimants. In such cases the costs involved can impact considerably on the ability of the public bodies that are under challenge to perform their general functions.

As the noble Lord, Lord Thomas, explained in moving his amendment on Monday, he was looking for specific words rather than words like “unreasonable”, which he said had such a broad meaning. Indeed, the noble and learned Baroness, Lady Butler-Sloss, added that the word “unreasonable” was liable to cause serious difficulties of interpretation and yet, as the noble Lord, Lord Thomas, has confessed, the word “unreasonably” is in Amendment 157.

It is precisely for those reasons that we are not yet ready to crystallise in statute, and ring-fence away from development in rules, words which are more properly left to the rules, where they can follow detailed discussions with stakeholders. They can be tailored and nuanced for the particular category of proceedings and, of course, the Lord Chancellor will remain accountable for the policy on these issues which is reflected through the Civil Procedure Rules.

Amendments 141, 147, 148, 149 and 150 deal with the recovery of ATE insurance premiums in respect of environmental claims under the Aarhus convention. Amendment 157 would introduce a new clause to provide for costs protection in the form of qualified one-way costs shifting—QOCS—for claimants in environmental claims and, it would appear, for all judicial review claims, whether concerning environmental issues or not.

The Government are, of course, conscious of their obligations under the Aarhus convention. Put simply, the convention requires us to ensure that parties have access to a procedure to challenge relevant environmental decisions that is, among other things, not prohibitively expensive. How we discharge those obligations has been a matter of debate for some time. It was addressed by Lord Justice Jackson in his report and was considered in a number of cases in the High Court and above. Amendments 141, 147, 148 and 149 seek to allow ATE insurance premiums to be recoverable from the other party in these cases. As I indicated in our debate on Monday, the Government's policy is that ATE insurance premiums should no longer be recoverable except in the particular instance of clinical negligence expert reports. Therefore, we do not favour this or any other extension of ATE premium recoverability.

Amendment 157 seeks to apply QOCS to environmental claims, subject to qualification in respect of unreasonable behaviour. The proposed clause would displace any rules of court in this area and provide for the Lord Chancellor instead to have the power to make regulations to extend QOCS to other areas in future. That seems to be something of a departure from the general principle that in civil proceedings, matters relating to costs are regulated in detail by rules of court. It is not clear why the departure would be beneficial.

As noble Lords are aware, the Government are introducing a regime of QOCS in personal injury cases to help balance the impact of the changes to no-win no-fee conditional fee agreements, and in particular as an alternative to “after the event” insurance. Claimants will continue to be able to take out ATE insurance if they wish, but they will pay the premium, which will be lower than the rolled-up premiums presently never paid by anyone other than a losing defendant. Although Lord Justice Jackson suggested that QOCS might be considered for use in some non-personal injury claims, the Government are not persuaded that the case for this has yet been made.

I noted the dispute between the noble Lord, Lord Beecham, and my noble friend Lord Lester about protective costs orders, which are also part of this consultation. As a matter of principle, the Government’s view is that protective costs orders can provide appropriate costs protection in environmental cases. Environmental organisations and the working group chaired by the then Mr Justice Sullivan, to whom noble Lords referred, expressed a preference for QOCS, having argued, including in a submission before the Aarhus Convention Compliance Committee, that an appropriate PCO regime could provide full compliance with the requirements of the convention. With a PCO, it will be clear from the outset what costs the claimant will have to pay if their claim is unsuccessful, while ensuring that some contribution is made toward the costs of public bodies that have successfully defended the claim. As I said, we have consulted on the issue.

The Ministry of Justice consultation Cost Protection for Litigants in Environmental Judicial Review Claims outlines proposals for a cost-capping scheme for cases that fall within the Aarhus convention. The consultation closed on 18 January and we will announce the way forward in due course.

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[Lord Beecham]

My Lords, this has been a short but interesting debate. I shall not detain the House long. I very much welcome the contributions by my noble friend Lord Davies, the noble Lord, Lord Boswell, and in particular the noble and learned Lord, Lord Mackay. I have some sympathy with my noble friend’s approach; he sees in third-party funding arrangements an alternative source of funding for cases that might not otherwise be advanced because of other changes that are in hand. My problem with that is that in effect he is throwing a lifeline to the Government to pursue that very restriction, and that does not serve the cause of access to justice.

The noble Lord, Lord Boswell, rightly drew attention to the concerns about this matter, and the remarks by the noble and learned Lord, Lord Mackay, clearly constitute a significant degree of support for the case advanced by the noble Lord, Lord Thomas. It is clear that we are potentially seeing a sea change in the way that some litigation will be funded in a way that runs contrary to the traditions of justice in this country. I note that the noble Lord, Lord Thomas, referred to hedge funds, and I think he is right; there is a danger here of legal hedge funds, as it were, being created and a secondary market developing, and who knows whence the funding of those organisations will derive? Experience in the United States is not encouraging, as the noble Lord, Lord Boswell, reminded us. I understand that in America, particularly in divorce cases, huge sums are in play.

The noble Lord, Lord Thomas, has done the House a great service in identifying the issues here and in coming up with a viable framework that could be put in place in order to deal with the potential difficulties. I think that the view of the House, from those noble Lords who have spoken, is that a voluntary code simply will not suffice, however well intended the motivations of those who sought to produce one—and they clearly were well intended. There needs to be a more rigorous structure, and the reference by the noble and learned Lord, Lord Mackay, to the Lord Chancellor making regulations, coupled with the ideas set out in the noble Lord’s amendment, offer a way forward.

If at this stage the Minister cannot give a clear nod to the amendment, and I can understand if he cannot, then I hope at least that further discussions can be held on the matter and an agreed position put forward on Report. We do not want this genie getting out of the bottle, to which it could not be returned, by default. There are issues here of great significance and we hope the amendment will provide the basis for taking matters forward in a way that can be agreed across the House—I think there is a general interest across the House in this—to the advantage of litigants and the cause of justice itself.

[Lord McNally]

My Lords, in 1962—which is now, sadly, 50 years ago—part one of my degree course contained a subsidiary paper on English legal institutions. About the only thing I can remember from that course is the concept of champerty and maintenance. It therefore came as something of a shock to be told that it no longer applied, and indeed had not applied for some time.

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[Lord McNally]

I think I had better get on to the brief.

[Lord Beecham]

Could the noble Lord offer his services to the Office for Budget Responsibility?

[Lord McNally]

My Lords, this has been an interesting and useful debate and I am grateful to my noble friend for outlining the matter with his usual thoroughness. Third-party litigation funding has developed and—to use the phrase deployed by the noble Lord, Lord Boswell—there is a welling up of disquiet about it. The noble Lord, Lord Davies of Stamford, takes what I would describe as the Robin Hood approach to this matter and views it rather optimistically as a way for the rich to help the poor. The noble Lord, Lord Boswell, was a little more sceptical about that scenario and drew on his American experience of how the process works. I think that people are a little worried when investors and investment opportunities are mentioned—the noble Lord, Lord Davies, mentioned that matter—when we are talking about the law.

I was delighted to hear the noble and learned Lord, Lord Mackay of Clashfern, mention Lord Simon of Glaisdale, who I remember speaking from the Cross Benches. You used to see the colour draining from a Minister’s face as he realised that Lord Simon of Glaisdale had thoroughly read and filleted the relevant Bill and knew exactly the contradiction in the government amendment that he was about to dissect. I experience that same feeling of foreboding whenever the noble and learned Lord, Lord Mackay, rises to speak. The noble and learned Lord said that Lord Justice Jackson could not be criticised for his brevity. All I can say to him is that Lord Justice Jackson is not alone among lawyers in that failing. I look at no one in this House in saying that.

Like other noble Lords, however, I take on board the noble and learned Lord’s point about the need to exercise caution in this matter. I think that the noble Lord, Lord Beecham, caught the mood of the House when he referred to the concept of legal hedge funds being established and cases being bundled up as investment opportunities as something that gives rise to rightful concern.

The code of conduct was drawn up with the specific requirement that the matter would be revisited if and when third-party funding expanded. It is a question of whether it has now expanded to a point where the matter should be revisited. As the noble Lord, Lord Thomas, explained, the Civil Justice Council published a voluntary code of conduct for litigation funders on 23 November. It was drawn up with the co-operation of the Association of Litigation Funders.

What I can say is that some serious points have been made during this debate, to which I have listened extremely carefully. My right honourable and learned friend the Lord Chancellor would like further time to reflect on these matters. They are serious, and some serious and worthwhile advice has been given. I see that the noble Lord, Lord Davies, is about to leap to his feet, and perhaps I may say that there was good and useful advice on both sides of the argument. I ask my noble friend to withdraw his amendment so that the Lord Chancellor can reflect on this issue. I shall not sit down if the noble Lord, Lord Davies, wishes to intervene.

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[Lord McNally]

It might. Some of them sound like coffee bars rather than trade unions these days, but perhaps that is part of the marketing. Certainly, the case of the trade unions was made very strongly by those who intervened. The service that trade unions provide their members no one gainsays—it is important—but we do not believe that that link between referrals and certain legal firms should be exempted from a general ban on referral fees. There must be those who have worked for trade unions who do not pay referral fees. I do not know. As a layman, I see referral fees as a distortion of the market, but there is nothing to stop trade unions having a good close working relationship with particular law firms. Some have had long-standing relationships. However, I cannot tell the House that we are willing to make an exception.

The noble Lords, Lord Pannick and Lord Clinton-Davis, referred to the payments by solicitors to other solicitors for the transfer of prescribed legal business, and we believe that that argument is rational and sensible. If for any reason a solicitor decides that a piece of business needs to be transferred, perhaps for the geographical reason that the noble Lord, Lord Clinton-Davis, gave or because the solicitor realises that it is beyond the competence of his or her firm, it would be perfectly reasonable to see a transfer. When the transfer is made, the solicitor concerned is able to claim an appropriate amount of money for the work dispersed before the transfer was made. We accept that logic. However the Government’s view is that reasonable payments of this type are not captured by the ban as long as they only cover the work undertaken by a firm in respect of the claim prior to it being transferred to a new firm. If there is a referral fee element to the payment, this would be subject to the referral fee prohibition and is a matter best dealt with by the regulator rather than by legislation.

Although I know that parts of this reply will disappoint noble Lords, we appreciate the widespread support for our ban on referral fees. We believe that this is the best way to lead our proposal to provide the most effective and proportionate way of preventing payment for personal injury claims and squeezing a bad practice out of the industry. We therefore invite noble Lords not to press their amendments.

[Lord Beecham]

My Lords, the noble Lord, Lord Hunt, has signified his support for the Government, but he is the only Member of your Lordships’ House who has done so in respect of these amendments. We have had some powerful speeches from a variety of people with an interest in and experience of litigation of this kind: distinguished lawyers such as the noble Lords, Lord Pannick and Lord Elystan-Morgan; people with direct experience of the shop floor, such as the noble Lord, Lord Martin; people with a lifetime in the trade union movement, assisting members and no doubt helping them to make their legitimate claims for compensation and advice, such as the noble Lords, Lord Collins and Lord Monks; and the noble Lord, Lord Alton, with his extensive experience of the voluntary sector. They have all made a very clear case for exempting trade unions and charities from the restrictions of this Bill.

We agree that there is a problem with the referral of claims and the industry that has grown up around them. That is commercial exploitation, which may well lead to expectations being aroused and cases perhaps being brought that should not be brought. That is why we support the thrust of the Government’s proposals. However, the Government and the noble Lord appear to be comfortable with third-party funding of litigation—subject, as we have heard and discussed in a previous debate, to possible regulation—but not at all comfortable with an arrangement by trade unions or charities for a referral fee for passing instructions, and no doubt assistance as well, to solicitors that they are recommending on behalf of their members. There is an element of quality assurance in that too. I do not understand, in this context, what the evil is that the Government’s proposals on referral fees are supposed to be curing. Who loses by the process that is being advocated in these amendments by those who support them? Where is the loss? There is no loss to the public purse, the insurance industry or defendants. There is no loser. It is not at all analogous to the commercial exploitation about which we spoke.

This curious matter, to which I referred in moving the amendments in the first place and which I will take a little further now, arises under Clause 54(8) , which provides that:

“Payment includes any form of consideration (but does not include the provision of hospitality that is reasonable in the circumstances)”.

You can take somebody for a drink but you cannot provide any other service. Page 47 of the Explanatory Notes says:

“Subsection (8) provides that a referral fee can be any form of consideration (which would include, for example, an offer by a solicitor to take on other work at a reduced rate or for no payment at all), other than normal hospitality”.

As part of my firm’s relationships with trade union clients, I used to offer a free will to a client for whom we acted after being referred to us by a trade union. We would offer free initial advice about other matters not connected with their personal injury claim, such as a matrimonial, employment or even a criminal matter. All of that would be caught by the Bill as it stands and as set out in these Explanatory Notes.

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[Lord Beecham]

Not all firms are large firms, and it will not surprise Members to know that my firm was not—and is not—a large one. However, we have had that kind of relationship. The profitability of firms conducting litigation of this kind is not high in any event, even without the question of referrals. I do not think that there are the kind of consequences that the noble Lord assumes to be the case. Equally, organisations with members seeking to derive the best service that they can for their members ought to be free to do that. I repeat that I do not think this Bill is at all on the right lines in what it is seeking to do. I again respectfully direct the Minister’s attention to the peculiar circumstances that subsection (8) proposes.

I was going to finish by commending again the amendment tabled by the noble Lord, Lord Pannick, about solicitor-to-solicitor arrangements. He made a very strong case there, and I regret that the Minister seems to have just dismissed it out of hand. Certainly—

[Lord McNally]

I ask the noble Lord to read Hansard tomorrow. We have made it extremely clear that we do not think that the kind of relationship outlined by the noble Lord, Lord Pannick, will be caught by this ban. It will be regulated by the Solicitors Regulation Authority, and I hope my statement from the Dispatch Box will give it some help in carrying out that duty. The Government do not believe that that kind of relationship, where a solicitor transfers business and takes a reasonable charge for the work already done, is covered by this ban.

[Lord Beecham]

I do not think it is necessary to confine the payment to precisely the basis that the noble Lord identifies.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Monday 30th January 2012 Lords Chamber

[Lord McNally]

My Lords, like the noble Lord, Lord Beecham, when speaking to the first series of amendments, the noble Lord, Lord Bach, continues to jab away at the broad architecture of these reforms. In these reforms we do not accept every last jot and tittle of Lord Justice Jackson’s report but, in the main, we accept its major thrust. It is a package of reforms and we are concerned not to dismantle it by accepting this series of amendments. The reasons for that are clear. The Jackson report was motivated not by government initiative but by judicial demand. Both the Master of the Rolls and the Lord Chief Justice wanted to look at a dangerous inflation in civil costs which in their view—a view that we share—was having an impact on access to justice. Whether there was or is a compensation culture, we can debate for a very long time, but we know that in many parts of the law there has been a quite worrying inflation in costs. A number of examples given by noble Lords on all sides suggest that action is needed. The Official Opposition’s view on the Jackson report was not clear from the remarks of the noble Lord, Lord Bach—he said that he did not agree with this bit of it. The noble Lord, Lord Beecham, looks like a greyhound in the traps, but perhaps at the end of the debate he can tell us his party’s general approach to Jackson.

[Lord Beecham]

My Lords, before my noble friend answers, perhaps the Minister can say which bits of the Jackson report he is in favour of, because there is quite a lot of it that he has not adopted.

[Lord McNally]

The bits that we are in favour of are in the Bill.

As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term “shot my fox”, but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons—that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs.

I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 24th January 2012 Lords Chamber

[Lord Beecham]

My Lords, in the interests of life, liberty and the pursuit of nourishment, I will be uncharacteristically brief in moving these amendments which relate to Clause 10 and the qualifications for civil legal aid.

Amendment 93 seeks to delete subsection (4):

“In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which there is more than one description of service that could be provided for an individual, the individual qualifies under this Part for the service which in all the circumstances is the most appropriate having regard to the criteria”.

What that means and how significant it is escapes me. Perhaps in replying the noble Lord, Lord McNally, could amplify the meaning of it. In addition, another curious subsection states:

“The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”.

It may be a fact but it can hardly be a principle—but that may be me being pedantic again. I have already been rebuked by my noble friend Lord Bach for correcting his use of the word “decimate”. The noble Lord, Lord McNally, may wish to rebuke me in this context.

Amendment 95 is simply designed to ensure that, if regulations are made, draft regulations should be laid before and approved by an affirmative resolution in each House of Parliament. We have had this amendment moved in respect of other regulations. It seems appropriate in this case that we should follow that course. I beg to move.

[Lord McNally]

My Lords, I would not dare to try to correct the noble Lord, Lord Beecham, on his English. I am still recovering from being corrected by the noble Lord, Lord Prescott, earlier in the Bill. I move in these circles with due caution.

I will address Amendment 95 first, which echoes the recommendation by the Delegated Powers and Regulatory Reform Committee to subject changes to the merits criteria to the affirmative resolution procedure. We have given careful consideration to what the committee said in its report about the procedure for the regulations under Clause 10(1)(b) and it is our intention to bring forward an amendment at a later stage to provide for regulations under Clause 10(1)(b) to generally be subject to the affirmative procedure. However, the amendment will also need to provide for a procedure along the lines of but not necessarily identical to that in Section 9(7) and (8) of the Access to Justice Act 1999 to allow for changes to be made quickly if necessary. With that explanation and assurance, I hope the noble Lord will not press his amendment.

Amendment 93 seeks to remove Clause 10(4) from the Bill. Clause 10(4) is based firmly on Section 8(4) of the Access to Justice Act 1999, which also contains an equivalent provision about the merits criteria. The funding code criteria made pursuant to Section 8 of the Access to Justice Act enshrine this principle. The purpose of Clause 10(4) is clear. It ensures that, where more than one level of service might be available, the merits criteria in the regulations under Clause 10 should be sure that the individual qualifies for the services which in all circumstances are the most appropriate having regard to the criteria. Often, one level of service will be most appropriate at the beginning of a case but the need of the applicant will change over time as the case progresses. Section 8(4) of the Access to Justice Act accounts for this.

The benefits of the provisions in Clause 10(4) are twofold. First, we can avoid unnecessary spending by ensuring that the appropriate level of service is funded. Secondly, applicants will benefit by receiving the level of service most appropriate to their needs. This is not a one-way street. There are likely to be instances where it would clearly be more appropriate for representation rather than help to be provided. The assessment will be an objective one, based on the criteria and all the circumstances of the individual case. In those circumstances, I hope the noble Lord will withdraw his amendments.

[Lord Beecham]

I am grateful to the noble Lord for confirming that changes will be made with respect to the regulation. I am happy to accept his explanation of what seemed beyond my limited intellectual grasp in that subsection. I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 24th January 2012 Lords Chamber

[Lord Beecham]

My Lords, in principle I welcome the notion of a review and some of the provisions that are effected in the amendment clearly make sense. However, despite the most distinguished provenance of the amendment I am left in doubt as to some of the wording and/or implications of what is proposed.

To begin with, the only duty on the Lord Chancellor, apart from initiating the review, is to lay a report before Parliament. There is no obligation for him in any sense to implement the review or to make changes having regard to the review. One fears that such a report might meet the fate of the infamous Black report—or the famous Black report that was infamously treated—in 1980, which some Members of the Committee will recall was published just before a bank holiday and disappeared from view thereafter. In other words, all we are getting is a report.

Moreover, the report, although it talks about the procedures and costs of claims, apparently is not required to deal with the funding of such claims. It talks about the costs but does not direct the person appointed to carry out the review and to report or comment on funding mechanisms—as I read it. The noble Lord, Lord Phillips, may put me right when he replies. It is quite sensible to have a provision that the reviewer may propose a,

“voluntary scheme or schemes as he or she shall see fit”,

but I am not quite clear what is meant by “voluntary scheme”. Is it a voluntary scheme of advice, or of conducting cases?

Subsection (6) defines “claims” as meaning,

“claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England”.

I am not quite sure what that means. Is it a reference to the Welsh situation? Does it mean that a clinical commissioning group, or indeed that a claimant of the nature of a private patient seeking treatment in a hospital in another part of the United Kingdom, would be subject to review in this report even though a claim might arise outside the jurisdiction of the English courts? It certainly is not clear to me quite what is intended, so although I certainly support the principle I am not sure that what is being sought here in detail quite meets the aspirations of those who drafted the amendment—let alone being sufficient to secure the support of the Minister. He will no doubt tell us what he thinks shortly.

If this matter is going to be pursued, it really needs some further thought and elaboration. If it is brought back at Report, it might be better to do so in a clearer form and, in particular, not to create a situation in which all that is produced at the end of it is a report which can be kicked into touch.

[Lord McNally]

My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:

“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.

We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.

As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.

Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment refers to Clause 16, which sets out the principles on which qualification for representation for legal aid can be determined. This is basically a probing amendment. Subsection (3) states:

“The Lord Chancellor may by order amend subsection (2) by adding or varying a factor”,

to or of the five factors set out in subsection (2). I apprehend that the Minister will confirm that such an order will be subject to the affirmative procedure. Given that the qualifications for representation for criminal legal aid are at stake, it is particularly important that that should be the procedure. If that is the case, the Opposition will be entirely satisfied and the amendment will be withdrawn.

[Lord McNally]

My Lords, as the noble Lord said, the amendment would omit subsection (3) from Clause 16. This provides a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). The Access to Justice Act also contains such a power at paragraph 5(3) of Schedule 3 to that Act. Any order made under Clause 16(3) would be subject to the affirmative procedure.

The factors in the interests of justice test broadly reflect the requirements of the European Convention on Human Rights, which, at Article 6(3)(c), provides expressly for a right for a person,

“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.

We see no reason now to depart from the principle established in current primary legislation that it is appropriate to provide a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). This allows for the flexibility to react to any developments in relation to factors relevant to the interests of justice requirement. As I have said and as the noble Lord asked, these would be subject to the affirmative procedure. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

I am most obliged to the Minister for that assurance. For future reference, it might be helpful in these cases if it were to be made clear in the Bill that the affirmative procedure would be used. It would save a little time. However, we have not spent much time on this and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, this is one of four amendments with which I hope to deal in pretty short order. It relates to the provisions in Clause 20 and the determination of financial resources for legal aid. Clause 20(6) provides for,

“determinations to be made and withdrawn in writing, by telephone or by other prescribed means”.

That is not very satisfactory because it does not leave a sufficient audit trail. In any event, verbal communication, and possibly online communication, may not be suitable in all cases given the variable capacity of people to manage telephonic or online communication. In particular, if an appeal is made to the magistrates’ court subsequent to a determination, it is necessary to have that audit trail. Hence, the amendment proposes that the communication should be in writing and not by telephonic or other electronic means. I beg to move.

[Lord McNally]

My Lords, concerns about the proposal to establish the community legal advice helpline as the mandatory single telephone gateway in four proposed areas of law were the subject of considerable debate in Committee on 20 December. Given that, and for the purpose of today’s debate, I will therefore address solely the specifics of this amendment as they relate to Clause 20.

Amendment 110 relates to the method by which determinations about financial eligibility for legal aid are made and withdrawn. It would require all determinations about financial eligibility to be made or withdrawn in writing to the person making the legal aid application. It would therefore stop determinations about financial eligibility being made or withdrawn by telephone, or by other prescribed means, thus of course affecting the proposed mandatory single telephone gateway. However, this amendment would go much further than just affecting the gateway. It would seriously affect the financial and operational viability of the provision of legal aid advice by telephone altogether.

In Committee, the noble Lord, Lord Bach, described existing telephone advice provision as “excellent” and,

“a fantastic channel for delivering advice”.—[Official Report, 20/12/11; col. 1759.]

This excellent service is provided through the community legal advice helpline. Currently included in this service is the making and withdrawing of determinations about financial eligibility by telephone.

Determinations about financial eligibility are currently made immediately upon receipt of a call by the community legal advice helpline. No suggestion has been made that the system has not operated effectively and efficiently. This would add considerable time, cost and complexity to the provision of civil legal aid services by telephone. It could delay in particular callers who are not financially eligible for legal aid but are provided with alternative sources of assistance. It could also delay those who are eligible for legal aid help receiving it, as staff and resources would be involved in completing and sending out notifications about eligibility.

Determinations are made after asking precisely the same questions of all callers as face-to-face legal aid providers would ask. Where a person is eligible, they will usually start to receive help on the same day. They do not have to wait perhaps a few days or more for an appointment before their eligibility can be assessed or before they can start to receive help to address their problem, as a person walking into a face-to-face provider’s office may have to do.

In addition, Clause 11(3)(h) means that individuals will have the reasons for the making of a determination explained to them. It will, however, not necessarily be in writing. The assessment of financial eligibility through the community legal advice helpline also filters out those who are not financially eligible for civil legal aid. This assists those individuals by allowing them to receive information about suitable alternative sources of assistance immediately after that assessment is made, enabling them to begin to take alternative action to address their problem promptly and with the minimum of delay.

The current community legal advice helpline is a well used route to access civil legal advice. It offers a high-quality service and works well—the noble Lord’s description of it as excellent is testament to that. The Government understand the concerns behind Amendment 110, but restricting or preventing the operation of the community legal advice helpline will not help those who are in most need to obtain legal aid advice services to help them resolve their problem. This amendment is not in their best interests and I urge the noble Lord to withdraw it.

--- Later in debate ---

[Lord McNally]

Yes. As I said after that debate, we will continue to liaise with the disabled organisations to ensure that we are getting this right.

[Lord Beecham]

My Lords, I regret to say that I do not find the Minister’s answer satisfactory. It is true that many people find the telephone advice line to be perfectly acceptable, but others do not. Telephone advice lines are not the best option for delivering advice to older people, those with language difficulties or those who do not understand English very well. However, this is not about advice; it is about the determination of financial eligibility, and there may be cause for people to appeal against decisions. It is difficult to do that on the basis of a telephonic communication. That is all this amendment requires. Although I beg leave to withdraw the amendment, I cannot say that the Minister has satisfied us about the difficulties which we envisage the proposal will create. It might be something that we have to return to.

--- Later in debate ---

[Lord Beecham]

My Lords, we return again to affluent criminals in a slightly different context. This amendment refers to the definition of an individual about whom information is requested for the purposes of a determination about that individual’s financial resources. The Bill defines such an individual as an “individual”, which is helpful, and goes on to say,

“and any other individual whose financial resources are or may be relevant for the purposes of the determination”.

The problem is that this may not cover, for example, a limited company or possibly a trust effectively controlled by the individual whose financial circumstances are being investigated. The purpose of the amendment therefore is to extend the definition to ensure that any connected companies or trusts are included in the assessment. It may be that the noble Lord will want to take a further look at this, but we are seeking to ensure in a different context the kind of approach advocated by the noble Lords, Lord Carlile and Lord Thomas, in respect of cases—in admittedly slightly different circumstances—where there are means which ought to be brought into account. I beg to move.

[Lord McNally]

My Lords, Amendment 111 relates to Clause 21, which provides a gateway for the disclosure of certain information to the “relevant authority”, defined as the director of legal aid casework or other person prescribed by the Department for Work and Pensions, Her Majesty’s Revenue and Customs and the equivalent Northern Ireland department. The information can only be requested by the relevant authority for the purpose of facilitating a determination about the individual’s financial resources for legal aid; that is, for the purpose of finding out whether they are financially eligible for legal aid. The categories of information that may be requested are listed in subsections (3) and (4) of Clause 21. Those categories refer to types of information in relation to a relevant individual. A “relevant individual” is defined in Clause 21(8) as meaning the individual seeking legal aid and any other individual whose financial resources are or may be relevant for the purposes of determining financial eligibility for legal aid.

We intend as at present to continue to require those applying for legal aid to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about such companies. More generally, applicants are required to disclose whether they receive any support from a third party, including an individual company or trust. Funding may be refused if this information is not supplied. In relation to companies, it is also possible to conduct an additional search through Companies House. There are indeed circumstances in which such information may be relevant. The Bill includes at Clause 24 a power that will enable the Lord Chancellor by regulation to require or permit the resources of a person other than the client to be treated as the resources of the client. That is currently done under the existing financial regulations.

Regulation 11 allows the resources of a person who is, has been or is likely to be substantially maintaining the client to be treated as the resources of the client. Regulation 11 also allows the resources of another person that have been or are likely to be made available to the client to be treated as the resources of the client. Regulation 12 provides a power to take into account resources that the client has either transferred to another person, deprived themselves of, or converted into resources that would be disregarded for the purpose of reducing their resources. For the purposes of those regulations, “another person” can mean a company, partnership, body of trustees and any body of persons corporate or not corporate. The effect is to prevent applicants for legal aid avoiding a full assessment of their resources by, for example, transferring them into the name of a company.

I return to Clause 21. The information listed in subsections (3) and (4) is about individuals because it is basic information such as date of birth, national insurance number and employment status, which can be related only to an individual. However, the information listed in subsection (4), which can be requested from HMRC, includes information about whether a relevant individual is carrying on a business, trade or profession, as well as further information—for example, the name of the business and its address.

As I have said, those applying for legal aid will continue to be required to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about any such company. It is therefore inappropriate and unnecessary to extend the definition of “relevant individual” to include companies and other legal persons. I hope that, with that explanation, the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, the Minister has given a clear indication that the objectives of the amendment are likely to be met by the present operation of the system. In those circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am not in a position to say and I fear—perhaps I am wrong—that the Government are not in a position to say either, which is part of the point. There does not seem to have been a consultation. There may or may not have been an assessment of the impact, but there certainly ought to be. As I say, this provision has come out of left field, to quote the noble Lord, Lord Thomas, on an earlier point. It really ought not to be progressed until there is a proper assessment of its impact, in consultation with the profession.

In any event, it seems there is something of an issue of principle as to whether the statutory charge should apply not just to the property secured by legal aid but to costs paid by the opposite party, as a contribution towards the total costs incurred on behalf of a claimant. That seems to be a novel principle and one which, as I say, came out of the blue and certainly needs justification. On the face of it, it is difficult to see what the justification would be. I beg to move.

[Lord McNally]

My Lords, I hope to end the evening on a reassuring note. We recognise that by virtue of the specific reference to costs, the language of Clause 24(1) is different from that in the equivalent provision at Section 10(7) of the Access to Justice Act 1999. However, we consider that costs are capable of falling within the existing provision on the statutory charge as,

“property recovered or preserved by”,

a legally aided person. In any event, I reassure noble Lords that Clause 24 does not represent a change of policy and will not result in any change to current practice.

The provisions in Clause 24 reflect existing practice by protecting the interests of the Legal Aid Fund in the same way that those interests are currently protected by the provisions of the Community Legal Service (Costs) Regulations 2000. For example, the provision in those regulations regarding payment of money due to a legally aided person relate to all such money, including any costs awarded. We therefore have no intention of altering the existing position that operates in cases where interparty cost orders are made and a claim is made against the Legal Aid Fund by a supplier. The current position in such cases will remain exactly the same when we implement the relevant provisions of this Bill.

Indeed, we recognise that market rate costs payments where interparty costs are ordered represent an important source of income for legal aid providers, and nothing in the Bill is intended to interfere with the present position in respect of such payments. Specifically, legal-aid-only costs will continue to be payable to providers where a supplier recovers interparty costs, to the same extent as at present. So the existing position, including in partial cost order cases, will remain. I also confirm that, in the specific context of interparty costs, we intend to exercise the power in Clause 24 of the Bill so that it is clear that legal-aid-only costs, including in partial cost order cases, remain payable to suppliers. This will make the position clearer than it is at present, given that the entitlement to payment for legal-aid-only costs currently appears only in the LSC contract. I hope that with those assurances, the noble Lord will withdraw this amendment.

[Lord Beecham]

My Lords, that certainly sounds extremely reassuring. I will read what the Minister has said with some care—not that I doubt him, of course—because on the face of it, if the clause does not change the previous legislation, I am not quite sure why we have it at all. However, accepting his assurances and good will, and in a spirit of relief at 10.45 pm, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Wednesday 18th January 2012 Lords Chamber

[Lord Beecham]

I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the gratitude that they would wish no doubt to convey to him on this aspect of his very long and very distinguished public service.

[Lord McNally]

I echo that tribute to my noble friend Lord Newton. I passed him in the corridor the other day and said that he was in grave danger of becoming a national treasure but not necessarily one on whom the Government can rely.

[Lord Beecham]

That is what makes him a national treasure.

[Lord McNally]

My Lords, on the treatment issues raised by the noble Lord, Lord Beecham, and others, I am advised that the Bill covers them. The matters covered by the Mental Health Act 1983 and the Mental Capacity Act 2005 are covered in paragraph 5 of Part 1 of Schedule 1, which includes treatment issues. Amendment 53 seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. The amendment is unnecessary.

As I have explained, paragraph 5 of Part 1 of Schedule 1 already provides for legal aid to be available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the Mental Health Tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, including psychological treatment, life, liberty, physical safety, capacity to marry or enter into civil partnerships, capacity to enter into sexual relations, or the right to family life.

Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on mental health or capacity issues concerning medical treatment. Furthermore, public law challenges to the lawfulness of public authority actions could be brought by way of judicial review, which is in scope under paragraph 17 of Part 1 of Schedule 1. We believe therefore that this amendment is unnecessary and I hope that my noble friend will agree to withdraw it.

I am advised that in the particular case to which he referred the issue was the eligibility of the family for legal aid, because of their means. We have continued to emphasise that legal aid is means-tested in these circumstances and that our intention is to focus it on those who are most needy. I hope that, with those references and that explanation, my noble friend will agree to withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Monday 16th January 2012 Lords Chamber

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

My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999—I think that the noble Lord, Lord Beecham, readily acknowledged that—which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation—and tax-funded litigation, at that—as the first option, and we have gone about this in a way that moves away from the 1999 Act.

The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.

In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now require primary legislation to amend the Bill, if it is enacted, on those points. No utility is served by that process. It is always open to Governments to change eligibility if they choose to do so and to take matters out of scope, but we are now seeing an attempt to fix the situation as it now is—to imprison the present system in amber, as it were. That makes change unnecessarily difficult should the situation in society as a whole change and require further alteration.

This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McNally]

Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary—and I think has been successful—to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.

Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices—but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.

During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent—£45,000 on legal fees and £45,000 on advice—to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000—

[Lord Beecham]

That was hardly a representative example of cases. In most cases—although necessarily costs in clinical negligence cases are higher than the average—they are nothing like that proportion.

[Lord McNally]

I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.

I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,

“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.

That is clear evidence of the kind of problem that we will see and which will presumably grow over time.

The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.

I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 10th January 2012 Lords Chamber

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

My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.

The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.

Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.

This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.

[Lord Beecham]

My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.

[Lord McNally]

If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.

[Lord Beecham]

In the circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,

“arrangements for the purposes of this Part”—

not just this clause—

“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.

The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.

On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.

As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.

Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.

Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.

There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.

Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.

The Access to Justice Act provides:

“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.

That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.

[Lord McNally]

My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—

[Lord Beecham]

Inadvertence.

[Lord McNally]

Perhaps he would like to move the next four groups formally as well.

Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,

“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.

I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.

The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.

In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.

--- Later in debate ---

[Lord McNally]

If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.

That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.

I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.

[Lord Beecham]

I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.

The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:

“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.

In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.

Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.

I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.

I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.

--- Later in debate ---

[Lord McNally]

My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.

How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.

As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,

“mediation and other forms of dispute resolution”.

The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.

I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.

As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.

[Lord Beecham]

My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.

[Lord McNally]

That is a merry jest with which to end the evening.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Beecham

Tuesday 20th December 2011 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Beecham, for his words. We are very pleased to see the noble Lord, Lord Bach, with us. He very courteously explained to me the personal reasons why he could not be with us earlier, but it is good to see him in his place now.

The debate has taken on some of the aspects of a Second Reading debate and it is none the worse for that. The first amendment allows for such wide-ranging points to be made. I shall not try to reply to them all at this point, as we are at the very start of Committee stage. My noble and learned friend Lord Wallace and I will return to many of the issues, like medical negligence and social welfare, as the Committee stage runs forward.

I accept the point made by the noble Lord, Lord Beecham, that the official Opposition are not arguing for retaining the status quo. He and the spokesman for the Labour Party in the other place have made it clear that, if they had been in office, faced with the economic situation with which we are faced, they too would have been making cuts. The debate is about where those cuts should be made and with what impact. It is fair for him to look at the impact assessment, and the fact that it lends some ammunition to him is an assurance that it is a very fair impact assessment. The very first question I answered from this Dispatch Box about the Bill related to the fact that if you make budget cuts to a section of government expenditure that is focused mainly on the needy, it is the needy who will find the impact of those cuts. That is true of housing, social welfare, and so on, and that is the reality of a Government who have to cut back on expenditure.

I make no complaint at all about the contributions from lawyers in the debate. If we were debating a fundamental issue about medicine, I would hope that the noble Lord, Lord Winston, and other expert medics in the place would contribute; and if we were talking about defence, I would hope that our generals would contribute. I do not think that there is anything wrong with the fact that a large number of the contributors have come from the legal profession. The daunting thing for me, as a non-lawyer, is the array of talent that is on display from the legal profession. I always remind my colleagues down the corridor that, whenever I stand at this Dispatch Box, I am very conscious that somewhere in the listening audience there are about three former Lord Chancellors and half a dozen former Solicitor-Generals or Attorney-Generals. I have never quite got to grips with the number of QCs that we have in the House of Lords, but there is a goodly number. We have good legal expertise and this debate is, and the Committee stage will be, all the better for it.

It is certainly not my intention to approach this—I am trying to find that barb from my noble friend—with something like tetchy impatience. In fact, over the past few months, I have been watching my noble friend Lord Howe at the Dispatch Box. He will be my model for this Committee stage—a kind of concerned bedside manner.

However, in talking about Committee stage when I was on the Benches opposite, I was on record as saying that if the House divides in Committee, almost invariably one will have to resist. I genuinely want to use Committee stage to listen. I cannot make blanket promises and I certainly, at this stage, cannot start giving a list of concessions. The position of the Government is that the Bill has been delivered from the other place in pristine condition and ready for adoption but, as our system works, we listen to the advisory—

[Lord Beecham]

I am not so sure about adoption being that much more difficult these days.

[Lord McNally]

We will listen and we will ponder. I hope that that will be the spirit in which we conduct the debates. It is certainly not, as the noble Lord, Lord Alton, suggested, an attempt to turn the clock back. Even when this exercise is finished, no one could dispute that we will have one of the most generous legal aid schemes in the world. My right honourable friend the Lord Chancellor, in his article in the Guardian, which has been quoted a number of times, says:

“Access to justice is a fundamental part of a properly functioning democracy”.

He goes on to make the point that the noble Lord, Lord Howarth, and a number of others made: “Without legal aid, and”—I emphasise this—

“the dedicated lawyers who deliver it, our system of justice would quite simply collapse”.

That is the starting point.

Community Legal Service (Funding) (Amendment No. 2) Order 2011

Debate between Lord McNally and Lord Beecham

Wednesday 26th October 2011 Lords Chamber

[Lord Beecham]

The lack of consultation to which I referred and on which I quoted the legal aid lawyers was in relation to this fees order, not the Green Paper.

[Lord McNally]

These were all foreshadowed in the Green Paper. The noble Lord, Lord Newton, is not a happy bunny but, as I said to the noble Lord, Lord Beecham, if we were not willing to take tough decisions, there would be a lot more unhappy bunnies around because we would be paying interest rates of two, three or four times what we are paying now, which would result in far greater cuts in public expenditure and services. The fact that our Government are not making headlines in relation to the economic situation in which they find themselves is because we had the courage to take tough decisions early. I have no doubt that when we ask colleagues and the Opposition to face up to that fact, we will always have the problem that these are tough decisions; we have never resiled from that.

Localism Bill

Debate between Lord McNally and Lord Beecham

Monday 10th October 2011 Lords Chamber

[Lord Beecham]

My Lords, I shall resist the temptation to stamp on my noble friend; it is a highly resistible proposition. I support the thrust of his amendments. Indeed, I detect certain sympathy on the detail of Amendment 199 from the noble Lord, Lord Lucas. There are matters in it that are worthy of further consideration by government and I hope that they will not simply reject the topic out of hand even if they cannot quite accept the wording of the amendments for reasons which have been advanced tonight and perhaps others.

On the new clause that would be inserted by Amendment 201, it is not an extraordinary demand to make of a public body that it should keep a record of, or at least do a report on, requests for freedom of information. I should have thought that this was a reasonably appropriate matter for a council audit committee—I serve on such a committee—to have before it as it is information about the governance of the authority. It does not seem to me that the amendment seeks to impose an inherently onerous obligation. It is one that should be within the knowledge of members of that authority. I think that routing it through the audit committees, or possibly standards committees, of councils would be a good way to ensure that elected members do not lose sight of the council’s obligations and that they ensure that their officers actually comply with them. I hope that the Minister will accede to my noble friend’s request to think about this and to perhaps bring something back at Third Reading. It is an important issue and although sometimes, obviously, there are difficulties in complying with requests, there is no reason why these issues should not be examined and, in the interest of good governance, improvements made to the local regime.

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

My Lords, I am very grateful to the noble Lord, Lord Wills, for moving the amendment. It is well known that he was himself, when in office, a champion of freedom of information. I am very grateful for the comment of the noble Lord, Lord Lucas, about my own record. I failed to persuade Jim Callaghan to put freedom of information into the programme of the 1976-79 Labour Government, but I was very happy that it was with Liberal Democrat votes that the Freedom of Information Act that is now on the statute book passed through this House. I am sad to read that the Freedom of Information Act is among Mr Blair’s major regrets of his premiership as it remains one of the things that I am most proud of being associated with.

I think that the noble Lord, Lord Wills, is a little ungenerous about the approach of this Government. It is not true that we have done nothing since coming into office. In fact, quite the reverse is the case. I think that the initiative that this Government have shown in relation to freedom of information and transparency has been quite revolutionary. The Government are committed to extending the scope of the Freedom of Information Act and to increased transparency and have made considerable progress in this since May 2010. For instance, as part of a package of measures announced in January, we have already introduced primary and secondary legislation to extend the Act’s scope and are currently consulting on more than 200 further bodies in this regard. In order to ensure that the Act continues to meet the needs of its users, the Act as a whole will be subject to post-legislative scrutiny. I do not think that noble Lords fully appreciate just how revolutionary that is. Indeed, when I urged that we bring forward post-legislative scrutiny, some of the strongest supporters of freedom of information were slightly nervous that the Act would come under too much criticism. What I say to them, and say to supporters of the Act now, is that post-legislative scrutiny and the assessments built into it will give the opportunity to prove what I still believe: that freedom of information underpins good governance.

Young People: Politics

Debate between Lord McNally and Lord Beecham

Wednesday 14th September 2011 Lords Chamber

[Lord McNally]

My Lords, I will take back to the Cabinet Office the suggestion of specifically recruiting young people to encourage other young people to register. The Cabinet Office has been consulting with youth groups to develop detailed operational policy for individual electoral registration, including ways in which to tackle under-registration. Additionally, the independent Electoral Commission runs public awareness campaigns to encourage voter registration ahead of all major election events.

[Lord Beecham]

My Lords, can the Minister explain how the Localism Bill’s abolition of the duty to promote democracy will encourage more young people, or indeed any people, to engage with democratic institutions?

[Lord McNally]

I am not sure whether that particular part of the Localism Bill will have an impact in the way in which the noble Lord implies. As I have just indicated, the Government are taking a great deal of care and attention, particularly about individual registration. Going back to the original Question, we are taking particular care to try to ensure that young people register to vote.

Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid

Debate between Lord McNally and Lord Beecham

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

My Lords, even as I was saying the words about the decision on mandatory sentencing, I had the noble and learned Lord very much in mind. I know his views on the matter. We will have to see how the matter goes through. I know that there are conflicting opinions on it. As I have said, my inclination is for a lot more judge power to be employed, rather than finding the prison population surging not because of a surge in crime but because changes have snared people who might not otherwise have been sent to prison.

On Schedule 21, we want a simpler and more transparent sentencing framework that is also more coherent. We consulted on a proposal to reform Schedule 21—as a possible simplification of the sentencing framework, rather than a measure to change sentencing practice—which sets out the starting point for determining the minimum terms to be served by an offender receiving a mandatory life sentence for murder. There was some support for revisiting the drafting of those provisions, but others took the view that the courts have already interpreted them in a consistent and flexible way. We have therefore concluded that reform is unnecessary at present.

[Lord Beecham]

My Lords, under civil legal aid, how many of the estimated 700,000 cases for which entitlement would have been lost under the original proposals will now be retained? What is the estimated cost of those changes to restore legal aid and advice that would otherwise have been removed? Secondly, is it correct that 90 per cent of the 5,000 responses disagreed with the proposals for legal aid?

[Lord McNally]

I am not sure what the statistics are on the responses. If you are about to cut a budget and you ask for opinions, I would guess that you are more likely to get more people objecting to the cuts than you are people in favour. That does not take away the validity. We had a large number of responses, and a large number pointed out various impacts, such as the point made by my noble friend Lord Thomas: sometimes solicitors on legal aid give early advice that saves problems further down the line. It is a difficult balance.

I have never tried to mislead the House by denying that, in part, the things that we have done have been for cost reasons, because of the constraints. That means that some decisions have been hard. The estimate is that we will reduce cases by about half a million—about 600,000 cases will be removed from scope. On the social welfare end, it is an extremely severe cut. Part of our debate will be about our arguments that, in this area, there has been too much publicly funded litigation and that there is much more scope for mediation and non-legal advice. That will be tested as the Bill goes through the other place and through this place when it arrives.

Justice: Civil Litigation Reform

Debate between Lord McNally and Lord Beecham

Tuesday 29th March 2011 Lords Chamber

[Lord Beecham]

My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.

In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.

The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?

[Lord McNally]

My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.

I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.

I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.

I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:

“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.

That is one way of representing its members, but I would not describe it as research.

Legal Aid

Debate between Lord McNally and Lord Beecham

Monday 29th November 2010 Lords Chamber

[Lord McNally]

Yes, I am familiar with the quotation. The problem is that, in the 60 years since legal aid was introduced, its scope has increased considerably. Like the previous Government, we were convinced that as a contribution to cutting government spending we had to find ways of reducing the legal aid bill. I do not pretend that these are easy decisions, but as I said before, the difference between being in opposition and being in government is that you have to take those decisions. We have done so.

[Lord Beecham]

My Lords, has an estimate been made of the increasing number of people who will be compelled to seek support from advice agencies, including citizens advice bureaux but many others as well, as the result of the withdrawal of legal aid and advice for such a wide range of significant topics? Will the noble Lord indicate whether any estimate has been made of the increased funding that will be required to support those agencies? Will the Government be making provision for that extra funding?

[Lord McNally]

My Lords, we estimate that the proposals on civil and family legal aid might affect between 460,000 and 512,000 people.

Legal Aid and Civil Costs Reform

Debate between Lord McNally and Lord Beecham

Monday 15th November 2010 Lords Chamber

[Lord McNally]

My Lords, if we are going to recalibrate legal aid, we shall have to explore the alternative resolution of disputes through mediation and other means. On the exceptional cases fund, part of the consultation will be about the criteria and the range of that fund. The recommendations of the Legal Services commission to the Secretary of State will determine how the fund is used, but the opportunity to consult will be taken to ensure that the fund is flexible to the needs of those who really need access to justice.

[Lord Beecham]

My Lords, does the Minister agree that the conflation of the costs of civil and criminal legal aid in the sum of £2 billion, to which my noble friend Lord Bach referred, disguises the greater proportion devoted to criminal legal aid? What will the percentage cut on the civil legal aid budget be? Can he also indicate where he expects alternative provision to be made and at what cost, and who will fund that cost? Perhaps he could also identify an estimate of the number of cases currently in receipt of legal aid in the categories that will no longer receive legal aid: that is, as the Statement made clear, education, employment, immigration, debt, housing and welfare benefits.

On a slightly tangential matter, will the Minister ask his right honourable and learned friend the Secretary of State for Justice and Lord Chancellor to look again at the court fees that local authorities are required to pay in child protection cases and which are widely thought to inhibit the necessary promotion of those cases? I declare an interest as an unpaid consultant in my former practice as a senior partner in a Newcastle firm of solicitors.

[Lord McNally]

My Lords, I shall write to the noble Lord on the specific numbers that are being dealt with in areas that are now going out of scope. I shall raise the issue of court fees with the Lord Chancellor. The target saving is £350 million, and I made it clear that that would come mainly from the civil side.