Coroners: Terminally Ill Patients

Lord Phillips of Sudbury Excerpts

Wednesday 3rd November 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I declare an interest as having been, a long time past, a coroner’s officer and having occasionally deputised for a coroner. I ask the Government to be very careful not to trench upon the independence of coroners who are judicial officers. All the advice and the rest of it that is being recommended should have respect for that crucial independence.

[Lord McNally]

I do not think there is any question of us trampling on the independence of coroners. What slightly surprised me when coming to this and looking at the file is the wide variation in the behaviour of coroners, which is not likely to produce public confidence. That was one of the reasons why the idea of a chief coroner was put forward. As I explained at the beginning of this exchange, when we looked at it, it proved to be too expensive, but the bulk of the suggestions and of the content of that Act will now be brought in-house. Judge us by what we do. We will follow the guidance of the Act in bringing consistency to the coroner system, but not on the basis of a rather expensive, at this stage in our careers, chief coroner.

Charities: War Zones

Lord Phillips of Sudbury Excerpts

Monday 25th October 2010 Lords Chamber

[Lord McNally]

My Lords, I read the report of the Committee on that Bill of 5 February 2007, when my noble friend raised a similar doubt, and the noble and learned Lord, Lord Goldsmith, gave him reassurances on this matter. I do not think that we can go beyond those reassurances, as we do not believe that the Act has the adverse effect on charities that he feared then and evidently still fears.

[Lord Phillips of Sudbury]

My Lords, does my noble friend agree that, although, as he says, the 2007 Act and criminal law do not apply to staff of charities working in war zones abroad, civil law and common law apply and the law of negligence is very much alive to those circumstances? Do the Government offer any advice or assistance to overseas charities having to make very difficult judgments vis-à-vis their staff when they are put into highly vulnerable circumstances?

[Lord McNally]

Yes, my Lords, we do. The issue is difficult and is a matter of judgment for the charities and for the individuals concerned, but we do not say that those very brave individuals should not go. I pay tribute to those who are willing to go into places of danger on behalf of charities. The Department for International Development draws the attention of NGOs to FCO travel advice for the area and the Charity Commission provides guidance to charities working internationally on how to manage the risks to their staff.

Elections: Voting Systems

Lord Phillips of Sudbury Excerpts

Tuesday 5th October 2010 Lords Chamber

[Lord Campbell of Alloway]

My Lords—

[Lord Phillips of Sudbury]

My Lords, given that the issue of election to this House is more fundamental than the issue of the type of election to the other place, will the Government consider a referendum on election to this House?

[Lord McNally]

I do not think that that is the Government’s plan at the moment but I would not be at all surprised if one of those amendments that I have just assured the noble Lord will be allowable was along those lines.

House of Lords: Working Practices

Lord Phillips of Sudbury Excerpts

Monday 12th July 2010 Lords Chamber

[Baroness Hamwee]

My Lords, one of our new colleagues asked me last week how it was that the House was self-regulating when there were so many things that he could not do. That led us to talk about self-regulation starting one step back from day-to-day procedures but it being important that the process should take the House with it when agreeing what our procedures and rules should be. Like the noble Lord, Lord Cope, I have been thinking about some of the things that Lord Russell used to talk about. He felt strongly that if we had a Speaker with a role similar to that of the Speaker in the Commons, we would all rapidly begin to behave rather badly. We would push at the boundaries and wait to be pulled back, and our behaviour would worsen significantly.

[Lord Phillips of Sudbury]

Hear, hear.

[Baroness Hamwee]

I do not know whether my noble friend’s “Hear, hear” was a comment on the rest of us or himself.

There has been a band of brothers and sisters working energetically on these issues, many of whom are speaking in this debate and are to be congratulated. I should like to speak mostly about the “what”—what we do—rather than the “how”, but it is time to review the role and remit of the Lord Speaker, because if we do not do that now, it will be some time before we can do it. We are coming to the end of the first term of the Lord Speakership. I doubt that its role and remit will make it into the manifesto of candidates in future campaigns for the Lord Speakership or that the House would welcome that. We would not be comfortable turning the election of an individual into a referendum on the role.

Four years ago, we resolved to elect our own “presiding officer”—that was the term. The outside world and many inside the House would expect a presiding officer to have more of a role within the Chamber. Self-regulation has meant that Question Time, for instance, has become quite a noisy affair, as other noble Lords have mentioned, and the logic of the government Front Bench rather than the presiding officer acting as the traffic warden is not obvious to everyone. If we are to look at the role of the Lord Speaker, some changes to the role of the Deputy Speakers would naturally follow, but, as the governance group identified, there is scope for the development of their roles, and what was once a logical distribution of work between the Chairman of Committees and the Deputy Speakers may no longer apply.

Huge strides have been made, many at the instigation and under the guidance of the Lord Speaker, in demystifying the work of the House. One of our guiding principles—this was very much the thrust of the speech of the noble Baroness, Lady Jones—should be not just transparency but intelligibility and accessibility. Democracy demands this. At a time of reform, there is a danger in being seen as having our gaze fixed on our collective navel, and we should be aware of what the public expect and want—although I am aware that they are not one homogeneous entity. Much of this comes down to common sense.

One thing that most people would expect of any organisation is that it reviews and evaluates what it has done to help it in future. That is why I am keen to see a development of the scrutiny of legislation both before and after its enactment. I declare an interest as a co-president of the Centre for Public Scrutiny. Most of us are alert to this House being complementary to the House of Commons—and we are all spelling “complementary” with an “e” this evening. This House is particularly suited to undertaking the work that many noble Lords have described. Parliament has a role that is distinct from government. I am perhaps the first this afternoon to say that we have a coalition Government, not a coalition Parliament. It is inevitable that Back-Benchers on the government side will be teased if we say anything mildly critical of the Government, but I have never seen scrutiny as equivalent to opposition. If you are on the government side, you hope to be a critical friend. Friends and opponents working together can do a very good job of scrutiny. Both want to test a proposal; the opponents because they want to show that it will not work, the friends because they want to ensure that it will. That was an observation that I gleaned fairly early on when I was chair of the London Assembly, the main job of which is scrutiny of the executive in London.

I hope that we will be able to extend our pre-legislative scrutiny. Once we in this House get stuck into a Bill that has had only partial attention in the Commons, we can be like terriers; but by this stage—and this applies also if the Bill has started here—Ministers are defending rather than debating. Positions are polarised, and that is not a good basis for taking forward a discussion. It might be easier for the Government, which is one reason why Parliament and not the Government should determine which Bills are presented in draft. Pre-legislative and post-legislative scrutiny are part of the same process, each building on the other. Identifying how legislation might have been better should feed in to improving it in future. It is a frequent complaint that Government do not let legislation settle down before introducing the next tranche. The noble Lord, Lord Luce, referred at the start of the debate to the quantity of legislation. Teachers, school governors and LEAs have been wearied by 33 education Acts in the past 26 years. Health has had 35, criminal justice 108 and the constitution 123. I am not arguing that these were all bad, but neither were they all good.

The noble Baroness, Lady Royall, mentioned the Digital Economy Act. We all have our candidates for post-legislative scrutiny. Freedom of information and data protection might well be high on the list, because the world that they were addressing has changed technically and politically. The previous Government committed themselves to reviewing legislation after three years. As I understand it, the current Government intend to continue this. I am not sure whether this refers to three years after enactment or after commencement. What might come out of post-legislative work could be the flushing out of the number of Acts and sections within Acts that are not in effect. It is very confusing—again I am taking the point of view of a member of the public—for those who need to know day-to-day what sections are actually implemented. My noble friend Lady Thomas of Winchester, who is the new chair of the Delegated Powers Committee, would have made that point had she been able to be here this evening. Review by the Government is not the same as scrutiny. It is not a substitute for cross-party consideration of the operation of legislation, hearing from stakeholders, questioning Ministers, considering whether the legislation is fulfilling its purpose and whether the costs, risks and benefits were properly and accurately identified.

As I have said, this Chamber is complementary to the House of Commons. Our work could be done in conjunction with the House of Commons, or, if the Commons is not inclined to do this, separately, being mindful of what the Commons does not find time for. There is a case for a committee separate from the Commons Select Committees, because a specialised committee could develop expertise and perhaps be in a better position to disseminate best practice across the board. I am not arguing that every Bill should go through the process. We need to find the right balance. The workload is not negligible, and nor are the resources needed, but I hope that the Leader’s Group will look at the mechanisms available and perhaps, as a first step, undertake a scoping exercise.

I am lucky enough to have been appointed recently to the Merits of Statutory Instruments Committee. Not everyone would say that was luck, and the size of the first agenda was a facer. However, as a Member of the House who has taken advantage of the committee's work in the past and who is now a member of the committee, I endorse it. Requiring both Ministers and civil servants to justify secondary legislation should lead to better practice. With around 1,100 statutory instruments a year, we need formal, structured attention, not a haphazard response relying on luck rather than management. In the short time that I have been a member of the committee, I have been very impressed by the workload carried by those officials who support the committee and who do a lot of thinking for us. It takes particular skill to give a critique while remaining on good terms with those you are critiquing, in this case the departments. However, they manage to carry through work that reflects the joint approach that we want to operate properly within our terms, even if we do not share policy objectives. There is a case for post-legislative scrutiny, including post-implementation reviews of statutory instruments.

None of this is groundbreaking: it is common sense and what the public expect. It should not be seen as threatening what is good about the way in which we work. If the message is to be got over, we will also need to work with the media. When I have said this before, in effect the comment has been, “steady on”; but they are part of the way in which our democracy operates. What is common sense but also novel in the UK Parliament, though not in other parts of our constitution, are procedures that recognise the changed political configurations within the Chamber. The public pretty much support political parties working together, as two of us now are, but they also expect us calmly to tweak the procedures to fit the new reality. I take issue briefly with the noble Baroness, Lady Royall, who referred to an inbuilt government majority. That is not the case—I will not say “unhappily not the case”. The first vote of the Session made that clear.

Scrutiny is not a second-class activity: good government needs good scrutiny. I congratulate those who have done so much work. There is a lot more that could be said, but I will regulate myself and say simply that I hope that the House can do justice to all the work that has already been done.

Justice: Legal Fees

Lord Phillips of Sudbury Excerpts

Monday 21st June 2010 Lords Chamber

[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.

[Lord Phillips of Sudbury]

Would my noble friend look more widely at the conditional fee situation now prevailing? As he may know, there are large commercial purchasers of cases from the public—they are not subject to any Law Society or Bar Council rules—who then sell them in bulk to solicitors for a fee per case plus a proportion of the conditional fee gathered in the course of it. Would he not accept that that is a gross problem for justice today?

[Lord McNally]

The way the conditional fee regime has grown up has produced a number of abuses and anomalies. Right from the beginning, from those Benches across there, I raised some of the actions of the companies to which my noble friend referred. I know that Lord Justice Jackson has looked at the actions of those companies in his report and has made some recommendations. I think that right across the House, there is a general feeling that there are abuses in the conditional fee system. We have to get the balance right between the access to justice that conditional fees give and some of the anomalies and, indeed, abuses that have grown up in practice. We will do so after consideration of Jackson, but with all due urgency.

Queen's Speech

Lord Phillips of Sudbury Excerpts

Thursday 27th May 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I start by congratulating the newly appointed Ministers—in particular, my noble friend Lord McNally. I believe that what has been done by David Cameron and Nick Clegg has been in the best traditions of the history of our democracy. It has not been an easy coalition to put together. I do not quite follow the noble Lord, Lord Harris, who suggests that there should have been a further general election after the coalition agreement was published.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Lord for giving way but I want to correct him. I was not suggesting that there should have been a further general election; I was saying that the claim of having some stupendous mandate by virtue of adding together the percentages of two lots of votes and saying that therefore everything should pass through without dissent because of that mandate cannot be made. That argument is destroyed by the fact that both manifestos were jettisoned in the coalition agreement.

[Lord Phillips of Sudbury]

My Lords, I am grateful for what the noble Lord says, but talking of both manifestos being jettisoned is just unreal. The fact is that neither party won an overall majority and in coalition there plainly has to be compromise on both sides. It is as simple as that: in effect, we were commanded by the public. I found that on doorstep after doorstep people were saying, “I hope that there is a hung Parliament because it’s about time we had parties in Parliament co-operating”.

I must confess that it is with some wistfulness that I look across at the Members on the Benches opposite, because after 40 years in opposition I am not sure how it is going to feel being part of the governing party, but there we are.

I think that we still have far too many Bills—22, I believe—in the programme. It is a really deep problem for this country and our democratic process that the amount of legislation is far beyond the capacity of the culture to understand, let alone digest. Although Nick Clegg has promised a great repeal bonanza, I hope sincerely that we will think hard about the way in which we proceed in both this House and the other place.

I should like to refer to the remark made by the noble Lord, Lord Strathclyde, when speaking on the Queen’s Speech. He referred to the prospect of election to this Chamber, saying that,

“if there is a demand for change, it must be addressed in a comprehensive way. Let me assure the House that proposals will be put before your Lordships at a formative stage”.—[Official Report, 25/5/10; col. 22.]

The key phrase there is,

“if there is a demand for change”.

I believe that the only proper, democratic way in which we can measure whether there is a demand for change in the method by which this Chamber is composed is by holding a referendum. I must be honest with the House and say that it was not until having hospitality with the noble Lords, Lord Bach and Lord Bassam, an hour ago that I realised that it was part of the Labour Party’s manifesto at the last election that there should indeed be a referendum to consider whether or not to elect this House wholly or mainly. I believe that that is absolutely essential—primarily because we do not own this House. We are servants of the public and surely there can be no more fundamental change than to alter profoundly the way in which this place is composed. The public must decide that. Anything short of that will sell the public short. I hope that the noble Baroness, in summing up the debate, can tell the House that the Government will consider—and do so soon—the need for such a referendum.

I shall talk a little about legal aid, which is a bit of an orphan subject in this debate. The right reverend Prelate the Bishop of Bristol referred to it and my noble friend Lord Goodhart made a passing reference to it. Let us make no bones about it, legal aid has been ignored too much. It was one of the great achievements of the Attlee Government. In a country where lawmaking is out of control and one cannot move without reference to the law, which is ever more complex and all-embracing, it is a scandal that the legal aid scheme has—I cannot say “failed”—is in extreme ill health. There are deserts of legal aid in this country and they are growing. The number of solicitors’ firms willing to do legal aid declines substantially every year. I have no time to go into the specifics but I hope that the Government will do more than what is suggested in the two lines in their programme and,

“carry out a fundamental review of Legal Aid to make it work more”,

not “efficiently”, as they say, but more effectively. In that regard I hope that they will note the fact that the Law Society, I am pleased to say, has at last undertaken an in-depth review of what it calls access to justice. An 80-page interim report is now circulating throughout the legal profession for feedback. I hope that the Government will act soon and work with that review in the hope that there can be some consensual reforms. That leads into what has been said about prisons and many other things.

In the two minutes that I have left, I shall refer to the charity and voluntary sector. The gracious Speech states:

“The role of social enterprises, charities and co-operatives in our public services will be enhanced”.

I hope that it is not just in our public services that the Government will make every effort to aid and abet the wonderful voluntary sector that we have in this country—the glory in many ways of the culture of the United Kingdom. Again I suggest that we need a bit of a change of attitude by government to the voluntary sector.

Too often, with the best intentions in the world, ministries will take initiatives, often with substantial funds, and will work not through the sector itself from the bottom up but in far too impository a way. For example, I would recommend that nothing should be done nationally without the close involvement of the National Council for Voluntary Organisations, which is the umbrella body of the—what is it?—third of a million charities in this country, 90 per cent of which do not have a single paid member of staff. I suggest even more strongly that nothing, but nothing, is done towards reviving and engaging citizenship, helping charity—which often gets to the parts that the state cannot reach, namely the most vulnerable and fragile in our society—other than by working with what is there. The most vital tools are the councils for voluntary service in every city and every county in this land. They work closely with their membership—a plethora of extraordinary organisations.

In all that, I hope that there will be bureaucratic proportionality because by God there has been overkill. I hope that there will be a degree of proper risk by the state realising that sometimes you have to chance your arm, even in government, for greater prizes and returns.

Last but by no means least, I hope that the Government will realise that for every pound that they spend—let alone every pound that they cut from the charity and voluntary sector—they are not merely denying the work that was paid for but cutting off the state and its agencies from a vast input of voluntary effort, time, compassion, knowledge and contact. Please will the Government think twice, thrice and four times before cutting a penny from the voluntary sector’s budget?