Sentencing Council: Guidelines

Debate between Lord McNally and Lord Clinton-Davis

Wednesday 20th November 2013 Lords Chamber

[Lord McNally]

My Lords, I appreciate that sometimes the way in which sentences are reported can cause that reaction—but the courts are required to impose a sentence that reflects all the offending behaviour in every case, for both single and multiple offences. With concurrent sentences, the guidelines make it clear that the courts should normally aggravate the primary sentence to reflect the additional offences. These guidelines are about ensuring that the courts apply those principles consistently.

[Lord Clinton-Davis (Lab)]

My Lords, how frequently, if at all, has such guidance been given since the inception of the present rules? If so, in what circumstances has that arisen?

[Lord McNally]

My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,

“it would be contrary to the interests of justice to do so”.

What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.

European Convention on Human Rights

Debate between Lord McNally and Lord Clinton-Davis

Thursday 7th March 2013 Lords Chamber

[Lord Clinton-Davis]

My Lords, as the only male to have the temerity to be on the list today, I beg leave to ask the Question standing in my name on the Order Paper.

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

I am not going there, my Lords.

The Answer to the Question is no.

[Lord Clinton-Davis]

Did not the Home Secretary argue recently that the next Tory election manifesto should include a pledge to withdraw from the European Convention on Human Rights, thus reflecting the views of many Conservative MPs? Was that not described by the former Justice Secretary as “laughable and childlike”? Does not this division on a serious issue of policy show evidence of a hopeless split in the Conservative-led Government today?

[Lord McNally]

My Lords, I speak at this Dispatch Box for the coalition Government and the coalition Government’s policy on the European Convention on Human Rights is very clear. The noble Lord asked a specific question, “Is it our policy to withdraw?”, and I gave him a specific Answer: “The Answer is no”.

Leveson Inquiry

Debate between Lord McNally and Lord Clinton-Davis

Thursday 29th November 2012 Lords Chamber

[Lord McNally]

After long experience, I always agree with the noble Lord, Lord Ashdown.

[Lord Clinton-Davis]

My Lords, the Minister spoke about the vulnerable, the innocent and poor people. Undoubtedly the issues that such people face will be complex and they will need help. Will the noble Lord undertake that, in suitable cases, legal aid will be available to them?

[Lord McNally]

I suspect that legal aid would be available. However, this is not the evening to discuss that issue.

Crime and Courts Bill [HL]

Debate between Lord McNally and Lord Clinton-Davis

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

Yes, of course, judicial discretion should remain. But what I do not want to do from this Dispatch Box is give the impression that on the one hand we are saying down the corridor and on public platforms that we are going to make punishment a key part of giving credibility to community sentences, and that on the other hand the House of Lords is giving a nudge and a wink that actually the judiciary can do what it wants. That would be wrong. I hope that a learned judge, on seeing an exceptional case that needs that kind of judgment, would exercise that judgment. But I hope also that judges will see it as exceptional and not applying to a third of the cases before them. I hope that that is a sufficient assurance for the noble and learned Lord.

Community orders can, in the right circumstances, be highly effective at tackling the causes of offending. The Government are very clear that we need to build on the reductions in reoffending rates in recent years. That is why the Government are proposing to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the requirement or requirements imposed as part of a community order should be those that are, in the court’s opinion, most suitable for that offender. That should provide reassurance on the point that the noble and learned Lord, Lord Woolf, has just made. I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are compatible with each other given the circumstances of the case. Again, the Government do not intend to change that requirement.

In short, these provisions will not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs. While accepting the spirit in which Amendments 3 and 8 have been tabled, I believe that existing statutory frameworks already provide adequate safeguards.

Amendment 3A would change the nature of the punitive element provision so that the courts would be required only to impose a requirement that delivers both punishment and rehabilitation. It is of course true that many of the community order requirements can deliver two or more of the purposes of sentencing. If a court wishes to impose a sentence that delivers both punishment and rehabilitation, choosing a single requirement that delivers both is one possible option—but so is combining a punitive requirement with an additional requirement, ensuring, of course, that the total weight of the sentence is proportionate to the seriousness of the offence.

The noble Lord, Lord Rosser, made a specific query about the example I gave. In theory, a single requirement, activity or programme along the lines that we talked about could fulfil this duty if a court felt it was appropriate for that particular offender. However, there will also be occasions where the court may decide that a purely or primarily punitive requirement is an appropriate response to a particular offence. We would not wish courts’ discretion to be limited so that they are required to impose both punishment and rehabilitation in cases where they do not believe both are necessary. However, as I previously stated, the Government firmly believe that all community sentences, bar in exceptional circumstances, should contain a punitive element. For this reason, while I entirely accept the point that punishment may often support rehabilitation, I do not believe that this amendment is desirable.

Turning to Amendment 9, a number of noble Lords have asked, both in Committee on 30 October and in today’s debate, which community order requirements courts could impose to fulfil this duty. I refer noble Lords back to the responses we received to our consultation on this issue. Practitioners were clear that, in the right circumstances, all 12 existing community order requirements could be punitive for a particular offender. The Government recognise the force of this argument. The courts are best placed to decide, on a case-by-case basis, what is punitive for a particular offender. That is why the Bill is drafted to give courts the flexibility to impose any community order requirement to fulfil the duty to include a punitive element, so long as they can be confident, on the evidence before them, that the requirement will genuinely prove to be punitive for that offender.

Of course, in practice, there are some community order requirements which courts are likely to make more use of than others. Again, this was a point that sentencers and those working with offenders made very clear in the consultation response. The consensus was that certain requirements, for the majority of offenders, are more likely to be punitive than others. The requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government would expect to see an increase in the use of such requirements if this provision is enacted. However, the Bill leaves it open to the courts to decide to impose other types of requirements if they believe, in the circumstances of a particular case, that this would fulfil the purposes of punishment.

Finally, turning to Amendment 11—

[Lord Clinton-Davis]

The noble Lord referred to other provisions. Would he define what he means?

[Lord McNally]

It is difficult. I do not know at what time the noble Lord joined our debate.

[Lord Clinton-Davis]

I have been in and out all the time.

[Lord McNally]

Which particular reference is the noble Lord asking about?

[Lord Clinton-Davis]

The noble Lord referred to other provisions which could be made by the judiciary in relation to Amendment 9.

[Lord McNally]

Well—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Monday 12th March 2012 Lords Chamber

[Lord Clinton-Davis]

I am sorry.

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

The noble Lord, Lord Clinton-Davis, was always known for his impetuosity.

I pay tribute to the noble Lord, Lord Stevenson, and his ongoing interest in debt matters. However, this amendment would have the effect of broadening the availability of legal aid for debt cases, contrary to our current proposals, which are to retain legal aid for priority debt cases only, where the individual’s home is at immediate risk of possession because of rent or mortgage arrears or involuntary bankruptcy.

It is never an easy decision to restrict the availability of funding but economic reality dictates that we focus scarce resources on the cases that are the highest priority. The Government have taken a principled approach to making spending reductions, prioritising funding for those categories of case that are most serious, such as where life, liberty or immediate loss of home are at stake. The necessary corollary of protecting funding in the most important areas is that we have to make tougher choices in the lower-priority areas.

When making these decisions, we have taken into account the presence of alternative appropriate forms of advice. It is simply not the case that legal advice is the only—or even the best—response to debt problems. Figures show that liability for the debt itself was reported as successfully contested in fewer than 2 per cent of cases in 2009-10, and also reveal that 62 per cent of legal help funding for debt matters was spent not on complex matters of law but on negotiating payment arrangements and advising clients on managing their affairs better.

We recognise that debt problems can be difficult and stressful for the individuals concerned, but we believe that what people often need is practical advice and support, rather than specialist legal advice. This help is quite widely and effectively available from organisations such as Credit Action, the National Debtline, the Consumer Credit Counselling Service and the Insolvency Service inquiry line and website. Local authorities also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust, to which the noble Baroness, Lady Coussins, referred, has recently launched “My Money Steps”, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online “Debt Remedy” service.

Such sources of help are best placed to deal with issues like debt relief orders, which this amendment suggests should be brought back into the scope of legal aid. These orders are relatively informal procedures, used by people who owe limited amounts of money and do not have assets. Indeed, the current legal aid scheme does not pay for their completion.

Given the availability of alternatives, and the pressing choices forced upon us by the economic situation, it does not seem a wise use of scarce resources to continue funding widely available legal advice, much of which replicates advice available elsewhere. We must move away from the assumption that for many problems that are fundamentally non-legal, the only answer is for the state to pay for legal advice.

I understand that this amendment is motivated in part by the noble Lord’s concerns about funding for citizens advice bureaux to provide debt advice. As I have said in earlier debates, we share that desire to see what can be done to help to ensure sustainability for the non-profit sector. However, let us not overstate the impact of our changes in legal aid on CABs. Legal aid funding is intended for specialist advice, not for cross-subsidy of other activities. As a matter of practice, in 2010, 85 per cent of all bureaux funding came from sources other than legal aid and half of all bureaux do not hold a legal aid contract at all. Moreover, it should be borne in mind—I am sure that the Opposition will be glad to know this—that we have already provided £20 million, which has come ahead of reductions in legal aid spend.

It is worth remembering that CABs have not had any cut in legal aid spend and will not until 2013. Of that £20 million, £16.8 million assigned to England is being used for the Advice Services Fund to support not-for-profit providers in delivering essential advice on debt, welfare benefits, employment and housing. Despite the concerns of the sector, the Money Advice Service will continue resourcing the existing free face-to-face debt advice services after 31 March, so that people in need have access to good, free advice. The Financial Services Authority has agreed to fund this provision from April.

I also understand that the Cabinet Office’s review is expected to conclude shortly and will provide recommendations on proposals to secure long-term sustainability of the sector. As my noble and learned friend Lord Wallace pointed out, it is only nine days to my right honourable friend the Chancellor’s Budget. Therefore, I would ask the House to be patient and to allow us to bring this important work to its conclusion.

It is always easy to make the case for spending but tough times require tough decisions. I hope that even our critics accept that we are making genuine attempts to protect the not-for-profit advice sector, not least by the pressures brought to bear by my noble friend Lord Shipley at earlier stages of this Bill and by other Members of this House who have raised the specific issue of the CABs and the not-for-profit sector. I have given assurances about this and, against that backdrop, I urge the noble Lord to withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Monday 5th March 2012 Lords Chamber

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

My Lords, let me begin with the comments of the right reverend Prelate the Bishop of Exeter. The worst-case scenario for me would be if this Government lost control of the economy and were forced by circumstances to come back with even more draconian cuts in public expenditure than those that we were forced to make when we came into office, and which the Labour Government in their last months were also planning. That is the reality, a reality that has been faced by every department of government. If we had not taken those tough decisions, we could indeed be facing that worst-case scenario in which control of the economy was lost and even more draconian cuts were asked of our citizens.

I recall saying that I would reflect on what was said in Committee. I have done so, and so has my right honourable friend the Secretary of State. I must say that the more I have reflected on it, the less convinced I have been by the amendment proposed by the noble Lord, Lord Pannick. Many speeches—although I do not accuse the noble Lord, Lord Hart, of this—have wandered very far in the direction of seeing access to justice as a concept of legal aid blank cheques signed by the taxpayer. I know that the noble Lord, Lord Pannick, will say, “Ah, but look at my amendment. See the limitations that I recognise”. Once you have said that there are limits to expenditure, some of the high-flown phrases used by the noble Lord, Lord Clinton-Davis, or the noble Baroness, Lady Mallalieu, have to be run up against that hard decision. You are drawing lines. You are not giving everyone access to justice financed by the taxpayer. We are trying today to see, as my noble friend Lord Thomas said, whether the amendment adds anything to our debate.

Amendment 1 relates to the supply of and demand for legal services. I accept that its purpose is very similar to the purpose for community legal services in Section 4(1) of the Access to Justice Act 1999. I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.

However, against the backdrop of the Bill, we believe that Amendment 1 is unnecessary and inappropriate in the context of Part 1. The provision in the Access to Justice Act relates to how civil legal aid operates on an exclusionary basis. By that I mean that it specifies what services cannot be funded under civil legal aid and leaves open the question of services that might be funded. In that context, a provision such as that in Section 4(1) of that Act, which provides a basis for determining which services might be funded, is a useful and appropriate addition where those services are undefined.

However, in the context of the Bill, the amendment is not appropriate. The provisions of Part 1 that relate to the general scope of civil legal aid are drafted on an inclusionary basis, where the services capable of being funded under civil legal aid are detailed explicitly in Schedule 1. As such, there is no question as to what services might be funded; they are in the Bill for all to see. Consequently, the amendment based on Section 4(1) of the Access to Justice Act is not appropriate.

That tension—some would say contradiction—is underlined by the amendment itself, the intention of which is to make the provision subject to the wider provisions of Part 1, which of course includes Schedule 1 and its description of the range of services to be funded under civil legal aid. We therefore believe that the amendment is not appropriate in the context of the Bill.

Outside those technical and definitional issues, the debate has raised questions about whether there should be a duty on the Lord Chancellor to secure access to justice. I shall briefly explain why we think that that is also unnecessary in the context of the Bill. The noble Lord, Lord Pannick, quoted the Guardian article of my right honourable friend. I repeat again that the Government consider that the rule of law and access to justice are a fundamental part of a properly functioning democracy and an important element in our constitutional balance.

It is true that the legal aid reforms are aimed in part at achieving savings. In our view, the current legal aid system is unaffordable, has expanded far beyond its original scope and is not sustainable in its present form—as I think was recognised by the Labour Party when it referred to cuts in legal aid in its election manifesto. However, the reforms are also aimed at encouraging people to use non-adversarial solutions to resolve their problems where appropriate and to speed up and simplify court processes where not. As such, we consider that our reforms should strengthen the rule of law by making the justice system more effective.

The Government believe that financial assistance from the state in accessing the courts is justified in certain areas, and that is why we have retained categories of cases within the scope of civil legal aid. I noticed that the noble Lord said that there was no social welfare spending on legal aid but that is simply not true, as he knows. We have also made provision for legal aid to be granted in the limited circumstances justifying exceptional funding under Clause 9. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights, as well as rights to legal aid that are directly enforceable under European Union law.

The Government do not dispute that it is a principle of law that every citizen has an unimpeded right of access to a court. However, they do not accept the proposition that there is a constitutional right to legal aid in all circumstances and at all times. Once that is conceded, the debate is about how and where we draw the line. The Government consider that the common law right, as mentioned by my noble friend Lord Thomas, of unimpeded access to a court of law means having the assistance of the court to assert legal rights and obtain remedies to which one is entitled, having the right to challenge a decision in the courts if one wishes to do so, and not being prevented from issuing court proceedings because of an inability to pay the court fee.

The noble Lord, Lord Alton, and others seemed to be moving very close to arguing for a legal aid scheme at the point of need—a kind of National Health Service for the legal profession. I think I have mentioned before that I talked to Jeremy Hutchison—Lord Hutchison—who is on leave of absence from this House and is now in his 90s. He was one of the lawyers who made up the legal aid scheme. He said, “Our ambition was a National Health Service for the legal system”. However, the truth is that successive Governments have backed far away from that ambitious concept. Although I know that the noble Lord, Lord Bach, would have made savings in other parts of legal aid, even the Opposition have said that there would be limits to legal aid. The noble Lord, Lord Clinton-Davis, said that he was brought into the legal profession by the idea of access to justice. However, even when he came into the legal profession, and every day that he was in the legal profession, the kind of access to justice that he was referring to was never available. Access to justice with legal aid has always been restricted. We have always had to draw lines and we always will, as he well knows.

[Lord Clinton-Davis]

Of course. The whole legal aid system is based on that; you have to conform with certain priorities. However, I repeat that the basic principle that brought many of us into the profession in the first place was fairness and justice, and that is being denied.

[Lord McNally]

It is not being denied; it is still there. However, in very difficult economic circumstances, we are making tough judgments and drawing lines, as successive Governments have had to do about where legal aid applies and where it does not.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Thursday 9th February 2012 Lords Chamber

[Lord McNally]

That is as I understand it, but I will write to the noble Lord if I am wrong. The other point that has been made—but of course if you try to be reasonable, you are derided—is that the courts are exempted from imposing the mandatory life sentences where they believe it is unjust to do so in all circumstances. It is the policy intention that offenders who have committed two serious offences not carrying life sentences will be liable to the mandatory sentence. However, we cannot at this moment assess the likely numbers that would be affected by that.

As I said before, we have a sense of schizophrenia about this. Perhaps I may finish with a quote from Sadiq Khan:

“Through their “two strikes” policy, the Government absolve themselves totally of any responsibility to identify the serious, violent offenders who are most likely to reoffend. That should be done at the time when the first sentence is handed down for the commission of a heinous crime”.—[Official Report, 1/11/11; col. 796.]

There is not much sense of rehabilitation or reform there. We have to deal with a serious set of reforms and what we get is headline-grabbing attacks on the basis that we are going to let out violent criminals and the rest of it. That is why I hope that some of the unity that was shown earlier about penal reform will resolve itself around support for the Government as we try to manage these proposals through the House.

[Lord Clinton-Davis]

I am much obliged to the noble Lord. I am totally unconvinced by the arguments put forward here, and not for the first time. When is the Minister going to address the issue that has been raised around the Committee?

[Lord McNally]

When is the noble Lord going to go down the corridor and talk to Sadiq Khan and the other spokesmen from the Labour Party and engage in a serious debate about penal reform?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Thursday 9th February 2012 Lords Chamber

[Lord McNally]

I entirely agree. That is why I said in my opening remarks that I am proud that this House has been the platform for penal reformers to argue their case over centuries, but I also say to this House that we have to carry another place and public opinion with us in these matters. One of the things I am most proud of is that this Government, and the Ministry of Justice under this Lord Chancellor, have been willing to try to educate public opinion. Some of the measures in this Bill will, I hope, move that forward, but no matter how much courage is used in expounding these views, if the result is for the public to lose confidence in the criminal justice system, those are Pyrrhic victories indeed.

[Lord Clinton-Davis]

Does the right honourable and learned gentleman—sorry, whatever you are.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Wednesday 1st February 2012 Lords Chamber

[Lord McNally]

My Lords, I thank my noble friend Lord Thomas and the noble Lord, Lord Dubs, for introducing the matter. I also thank the noble Lords, Lord Neill and Lord Bach, for their contributions. Part of the latter's contribution was a warm-up for the further debate that we will have on referral fees, and I will make two points about his comments. First, he said that the insurance industry was trapped in practices that drive up premiums. That would be fine if the insurance industry paid the penalty for that merry-go-round, but the reason that there is so much indignation is that the cost falls on the poor consumer. That is why there seems not to be much incentive in the industry to deal with this; companies casually pass on increased costs to the consumer, as we have seen with the escalation of insurance premiums in this area. Secondly, I join my right honourable friend the Prime Minister in praising the road traffic accident portal, which is working extremely well and we are actively looking at where else it could be applied.

As my noble friend Lord Thomas and the noble Lord, Lord Dubs, explained, Amendments 164 and 164ZA would prohibit an insurer making an unsolicited approach to potential claimants in a personal injury case if the insurer was aware that the claimant had legal representation. The amendments also specify the requirements that must be met before an insurer may make an offer to settle such a claim where a claimant does not have, or is thought not to have, legal representation. This includes a requirement to obtain adequate medical evidence of the injury and to advise the claimant of their right to obtain full legal advice before accepting the offer, and to make it clear to the claimant that the offer to settle is full and final. In either of these cases, a failure on the part of the insurer to observe the provisions would render any settlement void.

Third-party contact is the practice by insurers of making an early settlement offer to a claimant or third party where the insurer's policyholder is at fault in a car accident. The Financial Services Authority regulates the insurance industry and requires that insurers treat their customers fairly at all times. This would cover third-party claimants. I should explain that apparently the industry prefers the term “third-party contact” to “third-party capture”. I will leave it to noble Lords to make their choice on that.

[Lord Clinton-Davis]

Speaking from years of experience in this field, I know that the term “full and final settlement” is often used by insurers at the very beginning of proceedings and negotiations, but I do not think that it is adhered to. It is often possible to obtain a better settlement, so the term is ignored.

[Lord McNally]

The noble Lord says he speaks from very long experience. As this Bill progresses, I have found that quite often noble Lords on all sides of the House who have more experience than me of the legal profession tell me that there is often a gap between what is written down and the reality of the day-to-day practice.

Third-party contact does not, in itself, cause detriment to consumers and may be to their advantage as a claim can often be resolved quickly. In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim, and this in turn reduces costs for all policyholders. However, I am aware of concerns around the potential risk of conflict of interest and the need for the claimant to have independent legal advice before any settlement is agreed. The FSA undertook a review of third-party contact during 2009-10 and did not find conclusive evidence that unrepresented third parties could have achieved higher compensation had they obtained independent legal representation.

Following the FSA’s review, which was referred to by the noble Lord, Lord Thomas, the Association of British Insurers published a code of practice, to which he referred, in June 2010. The code contains specific guidance for insurers on contacting claimants. This limits unsolicited contact. For example:

“Insurers will not make unsolicited visits to an unrepresented claimant at their current address, including hospitals”.

I know we will be returning to some of this later. The code also requires that claimants are informed of their right to seek independent legal advice and of other options available to them to resolve their claim. As I have indicated, the practice was reviewed in 2009-10 but was not found, overall, to be disadvantageous to claimants.

In summary, most of the issues that these amendments seek to address in respect of the handling of third-party contact claims are already covered by existing regulation. The FSA rules require that insurers fully inform third-party claimants of their legal rights, including to independent legal advice, and of alternatives to settling directly with the insurer. In the light of this, we do not believe it is necessary to go along the lines of the noble Lord’s amendment, and I ask him to withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Monday 16th January 2012 Lords Chamber

[Lord Clinton-Davis]

What I said was that secondary legislation should be introduced only where essential, and the onus of proof is on the Government.

[Lord McNally]

I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.

There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

My Lords, I am most grateful for all the contributions to what has been an extremely full debate—one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.

I have to say that we were one hour and 40 minutes into today’s deliberations before anyone—it was the noble Baroness, Lady Howarth—kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.

I have not yet had a chance to read in full today’s speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme—and I have not heard anyone challenge this—it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.

[Lord Clinton-Davis]

But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?

[Lord McNally]

Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with “if … if … if” in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.

The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord McNally and Lord Clinton-Davis

Tuesday 20th December 2011 Lords Chamber

[Lord McNally]

If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords.

The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1. However, against the backdrop of this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9.

The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty.

Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services.

In addition, the Lord Chancellor will be required, in carrying out his functions, to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market.

Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.

[Lord Clinton-Davis]

So far the Minister has not mentioned the conversations that he and the Government have had with the Bar Council, the Law Society and other bodies concerned with this aspect of law. They have been critical of the Government's approach, have they not? In what way?

[Lord McNally]

At one stage I accused Peter Lodder, chairman of the Bar Council, of stalking me, so often did I see him. Of course the Bar Council, the Law Society and various other bodies, including committees of this House, will give an opinion on legislation. We are certainly in conversation on these matters. The noble Lord shakes his head, but when he was a Minister he did not say, “Come in, vested interests, tell me what you want and I will do it”. He listened to them, and where they could convince him he made changes. I assure noble Lords that my honourable and right honourable friends the Ministers in the other place and I have made ourselves constantly available to a wide range of bodies, including professional organisations, and we will continue to do so during the passage of the Bill. No organisation has a rubber stamp on the matter, but we will listen.

In philosophy and in content, this has been an extremely useful debate that I will draw to the attention of the Lord Chancellor. When it comes to the crunch, we face a division between the principled approach of the noble Lord, Lord Howarth, that access to justice means that we must pay the legal aid bill, whatever it is.

Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid

Debate between Lord McNally and Lord Clinton-Davis

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

I know that my right honourable friend the Lord Chancellor has very regular meetings with the Lord Chief Justice and other senior members of the judiciary. However, those meetings are private and he certainly has not made me aware of whether he has discussed any aspect of these proposals with the Lord Chief Justice or the judiciary. If he has, I shall respond in writing to my noble and learned friend. I am not aware of a formal consultation but, if one has taken place, I shall make him aware of it.

[Lord Clinton-Davis]

When mediation fails, as it sometimes can—and there is plenty of room for obstruction as far as that is concerned—does the noble Lord envisage that a remedy will be available for a person who is prejudiced by that sort of position?

[Lord McNally]

If you were pushing towards mediation but, as the noble Lord says, somebody refused to take up the mediation or tried to sabotage it, that would cause problems. I suspect that that would not be sufficient to enable the injured party to get legal aid if he had been outside its scope. However, again, I shall get clarification on that and, if I am wrong, I shall write to the noble Lord.

[Lord Clinton-Davis]

In any event?

[Lord McNally]

In any event. However, my feeling is that, save in exceptional circumstances, mediation would be the end of the road unless people found a means of financing their litigation other than with legal aid.

Public Bodies Bill [HL]

Debate between Lord McNally and Lord Clinton-Davis

Monday 7th March 2011 Lords Chamber

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

My Lords, I am grateful for the questions asked by the noble Lord, Lord Bach, about the Victims’ Advisory Panel. Let us be quite clear: the Victims’ Advisory Panel is not a body that gives help to victims. It does what it says on the tin: it is an advisory panel. It was established in 2003 and is a statutory, advisory, non-departmental public body, established to enable victims of crime to have their say in the reform of the criminal justice system. This is not a cost-driven proposal, although the abolition of the panel will save up to £50,000 a year.

The point made by the noble Lord, Lord Bach, is valid: that the appointment of the Victims’ Commissioner, Louise Casey, has changed the priorities and many of the things that the Victims’ Advisory Panel aimed to do have now been overtaken by the Victims’ Commissioner. Since her appointment, the Victims’ Commissioner and her team have regularly met victims in the course of their work; they have met more than 300 groups and individuals since May 2010. The Victims’ Commissioner has organised workshops and focus groups with victims of crime, organisations that represent victims and their families and organisations that provide services to victims. She and her team have also held specialist meetings with young people who have been affected by crime and carried out in-depth telephone interviews with members of the public.

It is not true that the Government have turned their back on victims of crime—quite the opposite. We have looked at a relatively small body with a relatively limited remit and taken the opportunity to remove it while also taking on board the opportunity to use the Victims’ Commissioner and her work much more extensively. The proposed abolition will in no way limit the opportunity for victims to articulate their opinions. The existence of the Victims’ Commissioner is a more effective and flexible means to ensure that victims’ views are independently represented to government. The Government’s intention to abolish the panel is in no way a reflection on the efforts of its members or the important recommendations that it has made to improve victim and witness services.

[Lord Clinton-Davis]

Did the coalition give any indication in the election that they were going to abolish the panel? What was the position of the Liberal Democrats and the Conservative Party?

[Lord McNally]

One of my weaknesses as a politician is that I am never expert on the specific pledges made in election manifestos. The last one that I remember in detail is one that I helped to write, but I will not mention which one and for which party. When the coalition took office, we took a general view. I will not produce groans from the party opposite, but in the light of the financial situation that we inherited—

[Lord McNally]

Absolutely on cue. That was the situation. I am not claiming that the £50,000 being saved by abolishing the panel will right the public finances. What is more important is that the coming into being of the Victims’ Commissioner, a creation of the previous Government, has overtaken the work of this relatively small body. I do not think that it is possible to put the interpretation on it that the noble Lord, Lord Bach, did, because the Victims’ Commissioner has in the past year been carrying out an extensive consultation with the public and victims, which will feed in very much in the way that the work of the panel has. As I said, I strongly doubt whether in either manifesto there was a commitment to this body one way or the other.

[Lord Clinton-Davis]

I can tell the noble Lord that there was no such commitment in either case.

[Lord McNally]

I will not say anything about the noble Lord and his dedication to reading election manifestos in detail, but it is often said that the only people who read election manifestos in great detail are the opponents of the parties that write them. I am absolutely willing to accept that.

The proposed abolition of the panel is based on the understanding that the Ministry of Justice will, through the commissioner and as a matter of course, continue to consult victims’ groups and engage with a vast range of criminal justice system agencies and voluntary and community sector groups on matters related to the views of victims.

On the point made by the noble Lord, Lord Bach, there is a large number of groups doing very good jobs on this, so it is over-egging the pudding a little to say that closing this relatively small group with a very short lifespan, which has been overtaken by the work of the Victims’ Commissioner, is going to damage victim support in the way that was suggested. Indeed, the victim sector contains many organisations set up by victims themselves that focus on specific issues such as homicide and sexual violence. The commissioner provides a valuable function in helping the Government to engage with this sector by ensuring that future policy is informed by the views of an appropriately broad and diverse range of individuals and groups. The commissioner has been meeting victims, and these representative groups across the country tell her their own experience of what has been happening. She is currently consulting on a range of issues, including the treatment of young victims and witnesses in cases that involve adult defendants and provision for the bereaved. Additionally, the Ministry of Justice has invited the commissioner to consult widely on and to participate in two of the department’s priority strands of work: the development of a more transparent sentencing framework and victims’ views relating to the rehabilitation of offenders and ways in which the victim might contribute to reducing offending.

The Ministry of Justice will continue to consult and meet victims and victims’ groups. We have just commissioned a full review of the services and support offered to victims of crime. Officials have commenced, as part of the review, a series of workshops with victims’ representatives to consult them on future strategy. These workshops have been attended by the Minister with responsibility for victims’ issues, the honourable Member for Reigate, Mr Crispin Blunt.

The proposal to abolish the Victims’ Advisory Panel should not be taken to indicate any wavering in the coalition Government’s support for victims of crime. Although the panel was set up to offer advice to the Secretary of State for Justice on matters relating to victims, it has never provided any form of victim support. The Government remain committed to ensuring that appropriate support is available for the most serious, vulnerable and persistently targeted victims of crime and to ensuring that the concerns of victims of crime are heard. I hope that I have reassured the noble Lord, Lord Bach.

On the specific question about WAVES, I will have to write to the noble Lord. I will investigate what has happened. On the crime survey, I have not been briefed that there is any threat to it, but I will inquire and write. I say to the noble Lord that I can understand why and, as I have said, I do not disagree that the previous Administration gave priority to the victims of crime. Building partly on their bringing in the Victims’ Commissioner, the removal of the Victims’ Advisory Panel is not the threat to victim support that he might have suggested in moving this amendment, which I hope he will withdraw.

Youth Justice Board

Debate between Lord McNally and Lord Clinton-Davis

Wednesday 8th December 2010 Lords Chamber

[Lord McNally]

Most certainly so. I have made it very clear that the Ministry of Justice is taking on the responsibility for continuing a success story. Therefore, what is put in place to carry forward these responsibilities must maintain that very clear and distinct responsibility for the service. I assure noble Lords that the new system will reflect that kind of structure.

[Lord Clinton-Davis]

Why change something that has been so successful? Is change for change’s sake the watchword of this Government?

[Lord McNally]

I am sorry to hear that barb at the end. The job of the Youth Justice Board was to establish an effective, local system of operating youth justice, which is now carried out by the youth offending teams. Therefore, this extra layer of administration and control is not required. That success means that youth justice is now under local control and is carried out by youth offending teams. We at the Ministry of Justice will carry out an arm’s-length supervisory role, but youth justice is a local responsibility that will be carried out at local level.

Justice: Magistrates’ and County Courts

Debate between Lord McNally and Lord Clinton-Davis

Monday 15th November 2010 Lords Chamber

[Lord McNally]

My Lords, to a certain extent those are concerns, and we will keep them under close review. However, we live in a more mobile age and justices will be given assistance with travel costs. The longest journey to court—this is an extreme under the new proposals—will be 40 miles, and most journeys will be much less. I understand the concerns but they do not outweigh the fact that, as the Lord Chief Justice, the noble and learned Lord, Lord Judge, said:

“It is obvious that a number of courts in different parts of England and Wales no longer fulfil any sufficiently valuable public purpose”.

[Lord Clinton-Davis]

My Lords—

Human Rights: Spending Cuts

Debate between Lord McNally and Lord Clinton-Davis

Thursday 7th October 2010 Lords Chamber

[Lord Clinton-Davis]

To ask Her Majesty’s Government whether there will be any spending cuts affecting human rights.

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

My Lords, we are committed to protecting human rights and restoring civil liberties in the UK, but all our priorities will have to be addressed in a very difficult fiscal context. We will make decisions about how we will achieve our aims after the results of the comprehensive spending review are known on 20 October.

[Lord Clinton-Davis]

What I would have liked to have heard from the Minister is a clear undertaking that human rights internationally would not be affected. This represents, does it not, an invaluable initiative of the late Robin Cook. Can they not see that the protection of international human rights is part and parcel of our security? Is it any small wonder that charities and many MPs of all parties are furious about the possibility that this will come under attack? Is it not right to contrast the way in which the Labour Government supported human rights with this coalition’s comparative indifference?

[Lord McNally]

My Lords, I think that I can give no better answer than to quote a speech by the Foreign Secretary on 15 September—a speech which I commend to all Members of this House. In it, he said:

“There will be no downgrading of human rights under this Government”.

Law Reform: Murder

Debate between Lord McNally and Lord Clinton-Davis

Monday 12th July 2010 Lords Chamber

[Lord McNally]

I can assure the noble Earl that we will. It is a broad issue where the groundwork has been done by the Law Commission. I know that the Lord Chancellor is taking a close personal interest in the matter. We will be bringing forward precise proposals to Parliament in the near future.

[Lord Clinton-Davis]

When does the Minister think that he can come forward with definitive proposals? We cannot kick this into the long grass; we must have a definite date. Is the Minister inclined to venture an opinion as to when it is appropriate?

[Lord McNally]

My Lords, I am looking across at some very distinguished former members of the team at the Ministry of Justice, and I am sure that not one of them would have given the kind of precise date that the noble Lord asks for. As for kicking it into the long grass, that is simply not our intention.

Justice: Legal Fees

Debate between Lord McNally and Lord Clinton-Davis

Monday 21st June 2010 Lords Chamber

[Lord McNally]

I thank the noble Lord for bringing me up to date on that saga. I think there should be a limit on success fees or, as the noble Lord, Lord Pannick, suggested, that the success fee should be borne by the successful claimant.

[Lord Clinton-Davis]

What are the views of the Bar Council and the Law Society about this issue? Do they think it can wait or do they demand urgent action?

[Lord McNally]

We are taking the advice of the Bar Council and the Law Society. Nobody has suggested that the issue should wait. Lord Justice Jackson has produced a 500-page report which even due courtesy would suggest should be studied before the Government proceed to action.

Children: Criminal Responsibility

Debate between Lord McNally and Lord Clinton-Davis

Thursday 10th June 2010 Lords Chamber

[Lord McNally]

My Lords, the simple answer is yes. Whether the strategy of the previous Administration was working may be answered by figures released this morning that show a decrease of 20.7 per cent in the number of young first offenders. That has been achieved by avoiding knee-jerk reaction, using the voluntary sector and giving wide discretion. The direction of travel which we inherited is one which we intend to follow.

[Lord Clinton-Davis]

My Lords—

[Lord Richard]

Will the Minister assure us that the report by the learned judge to which he referred earlier will be made public?