EU: UK Opt-in Protocol (EUC Report)
Lord Richard Excerpts(9 years, 4 months ago)
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Lord Richard (Lab)
My Lords, I thank my noble friend Lady Quin for the way in which she chaired this committee. It was done with skill, charm, and to great effect. I also thank the clerks to the committee, who performed with their usual skill, as did our legal advisers, who in this particular case were absolutely essential.
I am delighted to see the noble Lord, Lord Faulks, here. As a former practitioner, with many years at the Old Bailey, may I say how much I have admired, watching him in this House over the years, the charm and skill with which he advocates some of the worst causes it is possible to devise? Professionally, therefore, I am delighted to see him here.
This is an extraordinary debate. First, I have never known a report which, frankly, was quite so universally critical of the Government’s legal position. Usually, in an issue which involves disputes of this sort, you find somebody, somewhere, who is prepared to stand up and say, “Yes, I think the Government are right”. In this case, we could not find anybody who was prepared to do that. Secondly, I think this is the first time I have ever taken part in a debate on a report of one of your Lordships’ Select Committees in the absence of a response to that report from the Government.
As I understand it, a number of deadlines were passed and it was felt that this debate had to proceed. Quite why there has been no response is as yet unclear. If it means that the Government are actively and seriously reconsidering their current position, that is to the good and this debate is perhaps premature. If not, why has there been such an inordinate delay? This is offensive to the committee and contemptuous to the House. As my noble friend Lady Quin said, we waited a long time to receive the Government’s evidence to the committee. When it came, it was negative and sparse.
As I see it, there are three issues that ought to be considered here: first, whether the Government’s view as to the effect of the protocol is accurate, and particularly whether their interpretation of the words “pursuant to” is right; secondly, the effect of the recent judgments of the European Court of Justice and whether that case law is undermining the scope of the opt-in protocol; and, thirdly, whether there is any evidence that the Commission has deliberately tried to subvert the scope of the opt-in itself.
I will deal with these three issues separately. I think it is worth while to begin at the beginning; namely, with the terms of the treaty itself. Under the terms of the Lisbon treaty, the UK was given an opt-in protocol to replace its loss of the right to veto. That protocol allows the UK not to participate in justice and home affairs legislation. A recital to the protocol explains that it is intended to,
“settle certain questions relating to the United Kingdom and Ireland”.
The relevant articles of the protocol read as follows. Article 1 provides that the UK,
“shall not take part in the adoption by the Council of proposed measures pursuant to”—
I emphasise those words because they will become extremely important—
“Title V of Part Three of the Treaty on the Functioning of the European Union”.
As a consequence, Article 2 establishes that,
“no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States”.
I do not think I need to read the rest of the article.
This dispute has arisen because of the Government’s interpretation of “pursuant to”. In their written evidence, the Government said—and this is the nub of the argument—that Articles 1 and 2 of the opt-in protocol,
“are not restricted to provisions in agreements concluded under a Title V legal base, but to those adopted or concluded ‘pursuant to’ Title V. This is a broader test which, in the Government’s view, extends to any provision in an international agreement that contains content where the EU competence for negotiating, signature and conclusion of that agreement flows from Title V of the Treaty on the Functioning of the European Union or TFEU, that is, JHA content”.
It is in respect of that issue that we heard a number of witnesses.
The clerks of the committee made efforts to find lawyers who actually agreed with the Government’s position on this. They failed. I have never known a body of evidence from a number of distinguished witnesses which was so definitively in the same direction. They were asked whether they thought the Government’s interpretation of “pursuant to” was legally reasonable. None did. Professors Peers, Chalmers and Barrett were unanimous in their view. Professor Peers said the Government’s interpretation was “unconvincing”. Professor Chalmers concluded that it was “particularly challenging”. Professor Barrett thought it was a “singularly unlikely interpretation”. Dr Bradshaw concluded that “pursuant to” should be interpreted as “requiring a legal basis”. Professor Cremona thought the Government’s approach was “misconceived, legally speaking”.
The only body that advocated the Government’s interpretation were the Government themselves. No academic, no Government, no institution supported them. It is worth pointing out, as my noble friend already has, that Ireland, the other beneficiary of this opt-out procedure, has declined to follow the Government in their stance. It has not argued for a similar definition of “pursuant to”; I do not think it has even raised it.
It seems to me that the ordinary meaning of the expression “pursuant to” is more than an alternative way of expressing “following upon”. It requires, as our evidence says, a direct link with the parent measure. As was pointed out by Professor Peers, if the drafters of the protocol had intended the broad notion of the words advocated by the Government, they would have made it clear with different wording. Professor Cremona thought that the French version, “en application de ce titre”, and the Italian version, “a norma di detto titolo”, clearly expressed the concept of being based on or adopted according to that title.
This view is fortified by the fact that “pursuant to” appears in no less than 99 places in the EU treaties, protocols and declarations. The Government apparently take the view that the words should be interpreted in relation to the context in which they appear. Since this could lead, potentially, to 99 different versions of what the phrase means, it seems to me that that approach is somewhat fanciful. The Minister was a distinguished legal practitioner and will know that, if the words are clear, they should be given the same interpretation wherever they appear.
The committee therefore concluded that it was unpersuaded by the Government’s interpretation of “pursuant to” and found the argument that “pursuant to” in the opt-in protocol should be interpreted differently from elsewhere in the treaty equally unconvincing. The committee therefore called on the Government to reconsider their interpretation. That is the nub of the dispute that the committee had with the Government, although there were other issues, which I have briefly touched on.
I can deal with the remaining two issues that I raised rather more shortly. In chapter 7 of the report, the committee analysed six recent Court of Justice judgments. It also had the benefit of the opinion of the expert witnesses on Title V case law. It concluded in accordance with that evidence that the court’s approach to determining the legal base in the six cases we analysed did not differ from established case law and that the Government’s view that those cases do not have an impact on their opt-in policy lacks credibility. The committee thought that they clearly did.
In the course of the evidence, we heard rumours, particularly from the then Lord Chancellor, Mr Grayling, that the Commission in its choice of legal base was actively trying to subvert the opt-in. However, when the evidence was produced, it was less than convincing. The committee concluded that,
“the Government’s letter of 21 January provided no persuasive evidence of Commission circumvention of the UK’s opt-in rights. There is certainly no evidence to support any allegation that such circumvention is systemic”.
In only one case—the draft PIF directive—did the Government, in the committee’s view, provide some evidence that lent some support to this allegation. We should not forget that in that specific case the Government appealed to the Council, the Council agreed with the Government, and the legal base was changed to Title V.
To sum up the situation, it seems to me that the Government have just got it wrong. I am not wholly convinced that the advice given to the Government by their legal advisers was designed to express their view of what the law really is. When I joined the Foreign Office many years ago, I was told that the function of government legal advisers was not to tell me what the law was, but to tell me what legal arguments were available for me to use to justify the policies that I wanted to pursue. There is nothing wrong in that, except that it deserves to be recognised for what it is. The Government’s lawyers have indeed produced some arguments. I do not find them convincing, and nor did the committee. I hope the Government will change their position. They certainly should.
Lord Faulks
I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.
The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.
The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.
The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.
Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.
The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.
I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.
The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—
Lord Richard
Before the Minister leaves “pursuant to”, if he looks at the French version—“en application de ce titre”—it is impossible to claim that those words mean merely “following on from” without a definitive link. It is quite clear that the French text, which I imagine expresses the substance of the argument, refers to the application of Title V. In those circumstances, how can he claim that “pursuant to” means something totally different?
Lord Faulks
The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,
“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.
Lord Faulks
Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.
These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:
“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.
Indeed, the conclusions of the committee at paragraphs 184 and 185 were:
“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.
Lord Faulks
I was going to do that very thing.
“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.
I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.
The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.
These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.
The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.
The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.
The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.
The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.
We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.
The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.
The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.
Inquiries Act 2005 (Select Committee Report)
Lord Richard Excerpts(9 years, 7 months ago)
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Lord Richard (Lab)
My Lords, it was indeed a privilege to have been a member of the committee. The whole issue of public inquiries is now very much coming more to the fore in this country. Day by day we read of someone demanding an inquiry or an inquiry being set up, either a total inquiry into a particular issue or a partial one. It is a topic that is certainly current and of interest to a large number of people in this country. The Inquiries Act 2005 clearly needed post-legislative scrutiny to ascertain how it has been working and what amendments, if any, should be made to its operation. The committee heard a variety of evidence and came to some stern conclusions.
If I may say so, it was as good a committee as I have served on. I echo the tributes that have been paid to the chairman, the noble Lord, Lord Shutt, who chaired the committee with determination and good humour. He kept us at it and in the end we produced a unanimous report, save for the one slight qualification which the noble Lord who preceded me has referred to. It is a good report. We were extremely well served by Michael Collon and his staff, and by our special adviser, Professor Carol Harlow.
One has only to look at the list of witnesses who came before the committee to see the quality of the evidence that they gave. I do not propose to read the list out because it is set out in the report, but if any Member looks at it, he will see included in it a number of people of distinguished lineage and great experience who have either set up inquiries, or participated in them, written about them, dealt with them, have been subject to them or have given evidence to them. It is an impressive list.
Before I turn to the recommendations made by the committee, given that background, I must say a word or two about the attitude of the Government. It has been contemptuous and peremptory, and is indeed a good example of how Governments should not behave when faced with a powerful parliamentary committee report. It would be difficult, I think, to find a better instance of that. I would not wish to divert this debate into consideration of the Government’s behaviour, but it really was deplorable. Despite our efforts, and particularly those of our clerk, we were unable to obtain the attendance of a senior Minister. The Minister who actually gave evidence, Mr Shailesh Vara MP, the Parliamentary Under-Secretary of State for Justice, had, to put it kindly, only a nodding acquaintance with the subject. I make no great criticism of him and he did his very best to assist us with what we were trying to do in our inquiry, but he really was not the right person for the Government to have fielded on an issue of this importance before a committee of this sort.
The government response to our report, which was presented to Parliament in June last year by Mr Simon Hughes, was extraordinarily negative and unhelpful. Clearly, whoever was responsible for that response could not have properly read the evidence that was given to the committee. The response was, quite frankly, so dissociated from the mass of evidence that the committee received that it was difficult to see how they could have come to the conclusions that they did. Such was the feeling of the committee that, although it had formally ceased to exist, we asked for a further meeting with Mr Hughes, which, as Lord Shutt has told us, took place on 29 October. After listening, he undertook to review the Government’s position and let us have a written response by the end of November. That response has never been received.
Indeed, as members of the committee know, on 18 March this year the Ministry of Justice responded, saying that,
“the Ministry of Justice and Cabinet Office are working together”—
that is nice to know—
“on the points you and Lord Shutt have raised, and they will be addressed by Lord Faulks in Thursday’s debate”.
Frankly, this is farcical. If the Government have changed their view, we will not be in a position to comment upon it because the noble Lord, Lord Faulks, will be speaking at the end of the debate. The Government have elevated obfuscation to an art form in the way in which they have dealt with this report.
On the merits of the report, I would draw the particular attention of the House to paragraphs 81 and 82. If I may, I will read them:
“We recommend that inquiries into issues of public concern should normally be held under the Act. This is essential where Article 2 of the ECHR is engaged. No inquiry should be set up without the power to compel the attendance of witnesses unless ministers are confident that all potential witnesses will attend”.
In the next paragraph, we said:
“We would not however remove the possibility of an inquiry being held otherwise than under the Act, for example where security issues are involved, or other sensitive issues which require evidence to be heard in secret. Ministers should give reasons for any decision to hold an inquiry otherwise than under the Act”.
I also draw the attention of the House to the evidence given by Mr Vara. He was asked whether there should be at least a presumption that, if an inquiry was being set up, it should be under the Act. Mr Vara replied:
“I see no reason for not having that presumption … certainly the Act is there and it is there to be used … it is a first port of call”.
I was very content with that answer. Unfortunately, he subsequently went back on it in further evidence, telling the Committee that:
“To the extent that I may have led the Committee to believe that there is a presumption, I am saying that I do not know the answer. I am not aware of the word ‘presumption’ being used in the Guidance”.
I find this evidence extraordinarily disappointing. The 2005 Act was passed after very considerable parliamentary scrutiny. That there are some aspects of its operation which need amending is undoubtedly true but, by and large, and particularly if it were to be altered in accordance with our recommendations, the Act should stand as the normal way in which public inquiries are conducted. The fact is that the powers of compulsion under the Act are always helpful. Even if rarely used, they act as a useful weapon to persuade witnesses to attend and give truthful evidence. I can see no reason why that presumption should not be accepted by the Government. Of course there are the exceptions that I just referred to but, prima facie, if a public inquiry is to be set up, then it ought to be set up under the Act that Parliament passed dealing with the issue of public inquiries and which we have now inquired into.
We pointed out various amendments that should be made to the Act. I do not propose to refer to those in detail today, but they are set out from page 89 and Members of the House can read them if they wish to. Suffice it for me to say that they provide a comprehensive analysis of the terms of the Act and of the ways in which it could be improved. One defect we pointed out, which has already been referred to by the noble Lord, Lord Shutt, was in relation to the rules, particularly on warning letters. We pointed out that if that could be dealt with, it would make the operation of inquiries under the Act quicker and less stressful for those carrying them out. We recommended that rules 13 to 15 should be revoked and a rule substituted giving the chairman discretion as to the circumstances in which a warning letter should be sent.
Finally, I believe that this report is a significant analysis of the way in which the 2005 Act operates. It was a serious piece of work, taken seriously by all those who took part in the committee, and deserved better treatment than it has received from the Government.
Criminal Justice and Courts Bill
Lord Richard Excerpts(9 years, 11 months ago)
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Lord Richard (Lab)
My Lords, I plead guilty to the indictment framed by the noble Lord of not having taken part in any of the previous debates. Having listened to the debate this afternoon, I wish that I had. The noble Lord keeps saying “if it is appropriate” and that we must not deny young girls the great opportunity that these colleges might provide. Will the Government say that they will not put any girls under 15 in these establishments until the Government have established that these colleges work and would be of benefit to those children?
Lord Faulks
As I indicated, there are inspectorates —HM Inspectorate of Prisons, Ofsted, the Youth Justice Board and youth offending teams—and now we have a prospective report by the Secretary of State. The noble Lord, Lord Ramsbotham, said that the Secretary of State wished to put these people in the secure colleges. With great respect to the noble Lord, what happens is that if they commit offences and a court has decided that it is appropriate to send them there, subject to all the other safeguards, they will be sent there. The Secretary of State has nothing to do with them being sent there. His task is to provide appropriate establishments.
I respect the concern that noble Lords have quite rightly shown for this cohort—and I fully accept that they have exhibited it not just now but at various stages during the examination of these legislative provisions. They have expressed their view, those views will have been communicated to the Secretary of State, among others, and this House has made its position clear. Nevertheless, having considered the matter carefully, I ask the noble Lord to decide not to press his amendment.
Criminal Justice and Courts Bill
Lord Richard Excerpts(10 years, 3 months ago)
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Baroness Hussein-Ece (LD)
My Lords, I, too, was not going to take part but the previous contribution was not worthy. This is a very serious subject. I am the mother of a son who was mugged when he was a teenager. He came to the brink when he felt so scared that he wanted to carry a knife but luckily he did not—not to my knowledge, anyway. Young people, particularly young men, are more likely to be victims of crime and we need to have faith in the judicial system—as we have heard from noble and learned Lords this afternoon. We need to allow judges to take and judge each matter on its merits, case by case, and must not dictate from this Chamber and from Parliament.
We heard earlier from the noble Baroness, Lady Howells, about the issue of black youth. The argument was—with respect to the noble Baroness, Lady Berridge, whom I respect enormously—that they are disproportionately affected as they tend to be stopped and searched more. That means that others who may be carrying knives are unlikely to be stopped. That is a discrepancy that needs to be taken into account.
The idea that a 14 or 15 year-old boy who feels scared and vulnerable because he may not be in one gang or another but feels the need, however wrong it is—of course it is wrong, but there is no rationality here—to go out with a knife should then have his life ruined as a result of making one mistake is not something that we should support. We should leave it to the courts. We should be listening a little more to young people, which I do not think we are, about which things work and which do not. At a time when knife crime is falling I cannot for the life of me see why we should want to impose this mandatory obligation on the courts.
Lord Richard (Lab)
My Lords, I shall be very brief. What I object to in the Government’s proposal is the automaticity built into it. Irrespective of the circumstances of the particular offence or of the offender, there is an automatic assumption now that a second offence will produce a sentence of imprisonment. I do not like that—I think it is wrong. I do not think that is the way in which our courts should behave. Indeed, in 99.9% of the cases that is not the way in which our courts do behave. It is essentially a matter for judges to decide what is the appropriate penalty given all the facts and the circumstances of the case. Therefore, I ask myself, “If that is wrong, why are the Government doing this?”. I suppose the answer is that they want to send a message. What message do they want to send? It is a mixture, I suppose—part politics and part deterrent. I will leave the politics out of it because one of the interesting things this afternoon has been how apolitical this discussion has been. Therefore, let us just look at the deterrent argument. Does it hold water?
My noble friend Lady Mallalieu said that she practised at the criminal courts for 40-odd years. I cannot say that I practised with quite the continuity she did over the past 40 or 50 years but I have done the same. I have to say to the House—as she did—that the idea is fanciful that criminals solemnly sit down and say to themselves, “Well, if we are going to get X years we will commit this crime and if we are caught and we are going to get Y years then we won’t”. That is not how it works. The professional criminal does not think in that way and certainly the youth who may be carrying a knife as part of some kind of teenage bravado is certainly not going to think in those terms. I do not accept the deterrent argument.
So do we want to send a message? If we do want to send a message—a united one, I hope—that we thoroughly disapprove of knife crime and that people who carry knives should be properly punished, and in some cases severely punished, that is a good message and we should send it. But should we send it via statute, in an automatic way? It says, “If you do that, this is bound to happen to you.” I think not. It is totally the wrong approach. Judges have the power to deal with these cases and to send their message. If judges impose heavier sentences for second offences of knife crime, that is a matter for them, and some may hope that perhaps they will. It should not be a mandatory message of the sort that this clause would impose. It destroys judicial discretion and alters the nature of the criminal process. In almost every other area of the criminal justice system of this country we do not have mandatory sentences and I hope that we do not go down that particular road in this area.
Baroness Manzoor (LD)
My Lords, I, too, had not intended to speak, but I feel moved to do so on this occasion. We have judges for a reason, and if we set a precedent in relation to this particular issue, I think that we will put ourselves on a slippery path of setting other mandatory sentences in the future.
Lord Faulks
I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.
Lord Richard
Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?
Lord Faulks
I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.
Offender Rehabilitation Bill [HL]
Lord Richard Excerpts(11 years, 4 months ago)
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Lord Richard
Before the noble Lord sits down, perhaps he can help me with one small issue concerning the risk assessment. If you have a risk assessment, surely it follows that risks have to be assessed. The noble Lord says, “No, they do not have to be assessed; they have to be identified”. Why does he make that distinction? It goes to the essence of the point that the noble Lord, Lord Ramsbotham, is making. If there is an assessment of risk, surely we are entitled to see it, not to be told merely that certain risks have been identified but, as far as we know, remain unassessed.
Lord McNally
Of course, part of the problem is that it is described as a risk assessment by journalists. As I said before, a variety of exercises is carried out by the project development team, using various combinations of some of the figures that the noble Lord, Lord Ramsbotham, plucked out—in fact, it was a third source because they came from a leak to a journalist to the noble Lord, Lord Ramsbotham, to the House. So I ask the House to decide how accurate they are.
Of course, the Opposition cry, “Tell us”, but they went through similar exercises on big projects when they were in government. They realised that this was work in progress and it remained part of the management team’s work-in-progress tools. It is not a document that would give help to anybody in terms of what the noble Lord is talking about as risk. It is not about that kind of thing; it is about looking across the piece to see where the emphasis of work and development has to go.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
Lord Richard Excerpts(11 years, 7 months ago)
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Lord Richard
I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.
Lord McNally
Access to justice may also be by other forms of advice. Not all advice is legal advice.
Lord Richard
When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.
Lord McNally
Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.
Justice: Pre-trial Publicity
Lord Richard Excerpts(12 years, 11 months ago)
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Lord McNally
My Lords, we are aware of that, and we are very concerned to make sure that we get the balance right. However, where the press’s desire to sensationalise actually jeopardises a case, either by prejudicing the case against an innocent man or, almost as bad, so prejudicing a case that someone who is guilty has to be released, it cannot be in the interests of justice.
Lord Richard
My Lords, the noble Lord has told us what the Government intend to do and I think that they are wise to involve the Law Commission in this matter. However, he will know, as we all do, that Parliament’s record in implementing the Law Commission’s reports is not exactly very good—it is not a speedy process. Will the noble Lord note, certainly from the mood of the House this afternoon, that if the Law Commission reports on this, the feeling would be that it is not a report that can hang around for two, three or four years before Parliament looks at it? The matter will need some urgency once they have had a look at it.
Lord McNally
I thank the noble Lord for his comments. I am the Minister responsible for liaison with the Law Commission. One of the things I said to Mr Justice Munby, the retiring head of the Law Commission, is that during my stewardship I would hope that we could remedy some of the faults that he indicated and that, certainly on this point, we would approach any Law Commission report with a due sense of urgency.
Social Mobility Strategy
Lord Richard Excerpts(13 years, 7 months ago)
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Lord McNally
My Lords, I am on my feet, so noble Lords have to sit down. As we have 12 minutes, I suggest that we go to my noble friend Lord Willis, then to my noble friend Lord Ryder and then to the noble Lord, Lord Richard.
Lord McNally
I may get it wrong but I am trying to help the House, with 12 minutes to go.
Equality: Act of Settlement
Lord Richard Excerpts(13 years, 10 months ago)
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Lord Richard
My Lords, I share almost totally the views of the noble Lord, Lord Forsyth. I was very interested in what the noble Lord, Lord McNally, just told us: that there were apparently discussions with the various countries that recognise the Queen as their Monarch. Can he tell us when the last meeting of those countries was and when the next meeting is going to be, and perhaps give us a gentle glimpse of the agenda?
Lord McNally
I never cease to be amazed at the penetrating way in which the Opposition demand action this day on matters it sat on for 13 years. I have told the noble Lord that the discussions I referred to have not ended; they are ongoing. I shall consult the New Zealand Government, and if they are in a position to let me have that information I shall write to the noble Lord.
Children: Criminal Responsibility
Lord Richard Excerpts(14 years, 5 months ago)
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Lord Richard
Will the Minister assure us that the report by the learned judge to which he referred earlier will be made public?
Lord McNally
It is above my pay grade. It is no use the noble Lord saying, “Oh, come on”; he knows darn well that I cannot make that kind of commitment. However, I am sure that the Lord Chancellor will note such a recommendation from such a learned QC.