Justice: Pre-trial Publicity

Lord Thomas of Gresford Excerpts

Wednesday 14th December 2011 Lords Chamber

[Lord McNally]

My Lords, I think that the response to the noble Baroness’s question reflects concern in all parts of the House about this matter. There are a number of problems with the operation of the contempt laws which are set out in detail in the Law Commission’s Eleventh Programme. Since 1981, when the Contempt of Court Act was enacted, the world of publishing has evolved considerably in terms of technology and the structure of the media, and the internet is now a significant influence in this area. That is why we have referred the matter to the Law Commission. In no sense should this be taken as our kicking it into the long grass or as the Attorney-General not appreciating the real public concern about these matters.

[Lord Thomas of Gresford]

My Lords, some in the press take a gamble with pre-trial publicity that the suspect will be charged and convicted, after which there will, of course, be no proceedings. In the McCann and Jefferies cases, they then became completely contrite and settled the claims without any question. Should they not lose a day’s edition as a result of circumstances as bad as that? Can we not have measures that will really bite on the press when it goes astray?

[Lord McNally]

My Lords, my noble friend’s idea is an interesting one. I understand—just a thought—that an editor has not been sent to prison for contempt since 1948. The Attorney-General, who has been alive to this matter, said in a lecture at City University on 1 December that, in his opinion, the press has been pushing at the boundaries and in a sense has subtly been seeking guidance on what is acceptable. I hope that the Attorney-General’s action has given it suitable guidance that we take this matter very seriously.

Public Bodies Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I join my noble friend in expressing appreciation of the way in which our colleague and noble friend Lord Taylor of Holbeach handled this Bill at an earlier stage. His careful consideration of the points that this House was making has considerably enhanced its quality. I do not dissent from the view that the Bill was ill-considered when it first reached us. Indeed, it is an exemplification of the point made by a number of committees of this House on the necessity for pre-legislative scrutiny in matters of such importance.

A change that is particularly welcome is the nature of the scrutiny of the orders that will be brought forward in secondary legislation in consequence of the Bill. I am happy to see that that has remained, enabling further consideration to be given to some of the particular proposals. I am also glad that the Government have given further thought to the future of S4C and have included in the Bill a duty requiring the Secretary of State to ensure that sufficient funding is available. There was widespread concern in Wales that the original proposal would result in a serious contraction of Welsh language broadcasting. It is to be hoped that this change, which I gather has been welcomed all round, will remove that anxiety.

The RDAs were a particularly remarkable happening which, like the changes, were introduced even before the legislation was before the House. It is too late to cry over that spilt milk, but it may be said that the work done by the RDAs, including scrutiny of the European Union regional development funding and where it should be directed, must be done with effectiveness. I hope that the new arrangements for that will be reported with openness and frequency to enable Parliament to consider how successful those changes have been. On the face of it, they were rather remarkable changes to have been made without much prior consultation. What happens to European funding in particular is not a matter that is considered only by us, but will be considered by European Union institutions to see whether the money has been properly spent.

This House has proved its effectiveness and capability, its broadness of vision and its particular knowledge in preparing to tackle some of the outstanding problems that the Bill generated. I cannot think of legislation that has been given more careful or extensive attention that the one before us today. That it was worth while is manifested by the amendments that my noble friend has announced, and which were broadly approved in another place, and which by and large—indeed, almost universally—are to be welcomed. I hope, however, that such legislation will never be introduced again so soon after a general election, bouncing Parliament into decisions of such fundamental importance over such a broad spectrum of our national life.

[Lord Thomas of Gresford]

My Lords, I would like to underline what my noble friend has said about Sianel Pedwar Cymru. It has caused considerable delight in Wales that the Welsh authority will now have the funding from the Government without compromising the status and editorial independence of the channel, which gives so much entertainment in Wales.

[Lord Berkeley]

My Lords, could I ask the Minister to explain further the purpose of Amendment 55, which adds Dover Harbour Board to Schedule 5? It is a bit extraordinary to include one port from among 120 or so in this country, most of which are trust ports. I declare an interest as a commissioner of a trust port in Cornwall. Why add one port to a list including the Environment Agency, British Waterways Board and all these other bodies that we have debated, on the basis that the local MP thought that it was a good idea? Is this a precedent for local MPs around the country to come up with ideas for privatisation or mutualisation of their ports, and to come before the Ministers saying “Let us add this to the list and have fun”? As the Minister said, there is a perfectly good route for privatisation of ports in the Ports Act 1991. I would be grateful if he could explain the purpose behind this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, one of the three great universal lies is, “I am from the Government and I am here to help you”. I assure my noble friend Lord McNally that we are from the Liberal Democrat Benches and we are here to help him. I hope that by the time we have finished this process that will not turn out to be the fourth great lie.

Many aspects of this Bill are very welcome. The sentencing provisions demonstrate the enlightened views of the Lord Chancellor, who sees great merit in improving the system of retribution and reform by community sentences, not to mention the many millions of pounds that it will save in keeping offenders out of our great universities of crime. One client said to me not so long ago—he was a man of excellent character before he went to prison—“I don’t need to work again. After what I’ve learnt in here over the last six months, my future is made”, so that is one less on the jobless list. It is true that in this Bill the old devil is peeping out from the provisions for mandatory sentencing, but we shall deal with that in Committee. My noble friends Lord Dholakia and Lady Linklater will speak further on these matters shortly.

Once again, parts of this Bill have not been debated by our elected representatives and have passed through on the nod. I single out particularly the new crime of squatting. Are current civil powers of kicking out squatters and letting them go on their way not enough? Must we punish the homeless with fines and imprisonment as well? My noble friend Lady Miller of Chilthorne Domer, who wished to make this point today, is unhappily not with us but she will address this issue in Committee. This is certainly not hating the sin but loving the sinner; it is hating the sinner because of the chaotic person he usually is.

I declare an interest in that over the past 50 years I have made my living from legal aid, and I am proud to say so. The system has been due for revision and change for some years. It is a basic principle that:

“In the determination of his civil rights and obligations—

a person who can afford it—

“is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

I am sorry, I made a mistake; Article 6 of the European Convention on Human Rights actually states that “everyone” is entitled to a fair trial.

The legal aid provisions of the Bill are not designed to increase access to justice; they are meant to save money. That is fair enough. Those lawyers who have grown sleek and fat on the rich pickings of advising the sick, the disabled, the unemployed, the homeless and the immigrant have no need to go to WeightWatchers; they can now slim effortlessly. The matrimonial courts and the welfare and immigration tribunals of this country will resound not with the arguments of dry-as-dust lawyers any more, but with the arguments of good, honest, grievance-holders who will present their concise cases with style and precision and smoothly win their way to justice. Those of us with practical experience of the court system have just the smallest hesitation in applauding.

In welfare, immigration and benefit law, one principle stands out, and it is a principle to which my noble friend Lord McNally referred in his opening remarks—that of equality of arms. There has to be equality of arms between the state and its offshoots and any person in dispute with the state. At the very least that requires legal advice, assistance and advocacy in the Upper Tribunal on appeals from the social entitlement and the immigration and asylum chambers of First-tier Tribunals to the Upper Tribunal and appeals from there to the Court of Appeal and the Supreme Court. It also means a focus on better decision-making at first instance in these areas and a far less adversarial and more co-operative climate where litigants appear in person in front of First-tier Tribunals.

For the moment, I shall say little about areas of law that are removed from the scope of legal aid, save that the argument to retain clinical negligence within scope is, in our opinion, overwhelming. The Lord Chancellor takes power to remove further areas of the law out of scope, but takes no power to return into scope those areas where, as we reluctantly predict, the courts and tribunals will quickly grind to a halt.

I must make this point too; we on these Benches are not committed to smaller government, and when the economy improves we will look to ensure that access to justice in all areas is guaranteed. However, if financial necessity demands savings, it is essential that advice services to the public are fully supported. My noble friend Lord Shipley will expand on that, but it seems to me that if the Government are stipulating that the only gateway to legal aid is initially through the Community Legal Advice helpline, they should think again. The legal advice centres, citizens advice bureaux and other voluntary advice organisations, whose very existence is threatened by the cuts in legal aid, are a national resource not to be lightly cast aside. Rather than expanding the CLA helpline, the Government should fund these organisations to use their considerable expertise and local knowledge in providing the independent telephone and e-mail advice, which will certainly be required.

In the course of the Bill, I intend to focus on the changes promoted to conditional-fee agreements and after-the-event insurance in Part 2 of the Bill. My noble friend Lord Phillips and I were hotly opposed to the alterations contained in the Access to Justice Act 1999 on the principle that a lawyer ought never to have a financial interest in the outcome of a case. I shall table amendments to continue that fight against the creeping advance of third-party litigation funding, which used to be called maintenance and champerty, to introduce regulation into a completely unregulated field.

However, we have to sort out in the present provisions of the Bill not only the principle of whether the success fee and after-the-event insurance premium should be deducted from the damages of a claimant who has been injured by the negligence of the defendant, but the uncertainty introduced by the proposals for qualified one-way costs shifting, to which the noble and learned Lord, Lord Davidson, referred. The unintended consequences of the present proposals include much more satellite litigation: the destruction of after-the-event insurance in claims other than personal injuries, such as in environmental law where we have international obligations under the Aarhus convention, and in other complex and different cases where the ordinary man faces an industrial or commercial giant or the intransigence of local authorities. The concept of abolishing referral fees is to be welcomed, but it is another area that must be fully explored and the real abuses rooted out.

We are here for the long haul, and in Committee and at later stages we shall wish to put many things to the noble Lord, Lord McNally. We look forward to those stimulating encounters.

Coroner Service

Lord Thomas of Gresford Excerpts

Tuesday 1st November 2011 Lords Chamber

[Lord McNally]

A Government is allowed to look at an issue, examine widely, listen, consult, and then make a decision in the context of the financial circumstances it finds at the end. My right honourable friend the Lord Chancellor has decided that the immediate appointment of a chief coroner is not justified in the present circumstances. After listening to the various representations, we left the title of chief coroner in Schedule 5 to the Bill when it returned from the other place, and that will allow this House, the other place and the outside organisations to judge whether we are still able to carry through the bulk of the 2009 Act without the chief coroner. We believe we can, and by our deeds you can judge us.

[Lord Thomas of Gresford]

The charter will not be statutory so how will it be enforced?

[Lord McNally]

The Coroners and Justice Act 2009 provides for the Lord Chancellor to issue statutory guidance about the way in which the system operates, specifically in relation to bereaved families. We plan to revise the charter when we implement the coroner provisions in the Act and at that stage we will give the revised charter the status of statutory guidance.

Crime: Youth Justice

Lord Thomas of Gresford Excerpts

Monday 24th October 2011 Lords Chamber

[Lord McNally]

My Lords, perhaps fortunately, I am responsible for the Ministry of Justice, and, there, we have come to the clear conclusion that we can operate the responsibilities of the Youth Justice Board better by creating a new youth justice division, which will be a dedicated part of the MoJ sitting outside NOMS, and maintaining continuity and expertise by agreeing that John Drew, the current chief executive of the YJB, will lead the division.

We have indeed received a number of responses—70 in all, I think—to the consultation, which closed on 11 October. The department is studying those responses and will report in due course.

[Lord Thomas of Gresford]

My Lords, Mr Crispin Blunt, in his evidence to the Justice Committee in another place, said that there were complaints from youth offending team managers about the Youth Justice Board. How many complaints were there and what was the nature of those complaints?

[Lord McNally]

I have not seen in detail the evidence given by my honourable friend. I suspect that almost in the order of things there are occasional irritations between a central and a local body. Throughout the life of the YJB, there have been various debates about where the onus of responsibility should lie. We believe that by slimming down the central role of the YJB, we can give youth offending teams more responsibility, in keeping with the Government’s localism policy. I will investigate whether the exact exchanges that Mr Blunt was referring to are available on the public record and what they contain, and if I can reveal them to my noble friend, I will.

Crime: Home Protection

Lord Thomas of Gresford Excerpts

Thursday 20th October 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the House will be most grateful to the noble Lord, Lord Blencathra, for introducing this important subject. It was considered by the Law Commission in 2005, which stated in paragraph 4.19 of its report, headed “The threatened householder”, that,

“there is a strongly held view among many members of the public that the law is wrongly balanced as between householders and intruders. We think that much of that public anxiety is based on a misunderstanding of the present state of the law, contributed to by incomplete understanding of certain notorious cases”.

That is where we start in a consideration of this important question.

What is the law? I went back to the common law as enunciated by Blackstone in his Commentaries on the Laws of England in 1761. On self-defence, he stated:

“The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and, when external violence is offered to a man himself, or those to whom he bears a near connection, makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force”—

that is the future process, the point made by the noble Lord a moment ago—

“since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor”.

That is almost the speech that the noble Lord has made this morning. It also happens to be the law of this country, dating back 250 years.

Of course, the matter has not been left there. It was considered again in 1879 under the chairmanship of Lord Blackburn. I will not weary your Lordships with a quote from that but it was to the same effect. Most recently, in the Court of Appeal in October last year, Lord Justice Hughes set out the very long established law, which has two or sometimes three stages into any inquiry into self-defence. First:

“If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof”.

Secondly:

“If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case”.

In other words, the court will look at the honest belief of the defendant as to what he thought was happening. Thirdly:

“Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate?”.

That is a statement of the law made very recently.

Let me give your Lordships some examples from my own experience to indicate how the law has operated. I can go back to the 1970s, to a case where the defendant was a former military man in his 40s, who had retired from the Army—he was a warrant officer—to look after his sick father. In those days people wore their hair long—perhaps some of your Lordships wore your hair long in those days—but he of course had a short back and sides and he became a butt of the community. One day when he was looking after his father in the bedroom of a council house, a youth came up the path and threw a brick through the fanlight above the door, whereupon the defendant took a .22 rifle and from the bedroom window shot him through the head and killed him. The defence was defence of property—he was in no personal danger in the bedroom with his sick father. The jury considered all the circumstances, as the jury is bound to do, and acquitted him. He was not guilty of murder, he was not guilty of manslaughter; he walked free.

Another case I recall from the Midlands was when a person, again in his home, heard a noise outside and discovered that some drunken passing youths had turned his car upside down on the drive. He went outside and remonstrated with them. They started to shout and hurl abuse at him. He went back inside and picked up a knife. When he came out, the youths were picking fence staves up in order to attack him. They attacked him and he stabbed one of them with the knife. The jury heard all the circumstances. He was defending himself and his home. Again, the jury acquitted him. All together he was found not guilty of murder.

These cases are from my own experience but they are happening all the time. A third, more recent, case is from Trinidad. A police officer, surrounded by a crowd of youths at a music festival, felt that he was being attacked. It was his defence that one of the people attacking him had produced a knife. He produced his revolver and shot two people, one of whom he killed. In that case, a trained officer used a gun against someone whom he believed to have a knife in those circumstances. Unhappily, his counsel in Trinidad decided not to run the defence of provocation but to rely entirely on self-defence. The jury convicted the police officer of murder. In the Privy Council, it was pointed out that certainly the crowd around him and shouting at him were provoking. The case went back to Trinidad and, on a retrial, he was convicted of manslaughter on the grounds of provocation.

My point is that the facts can be completely different and the surrounding circumstances are completely different in every case. If, for example, a burglar is in the bedroom and my wife is on her own, and she uses excessive force by, let us say, shooting—not that she has a revolver, I have to say—and kills the person concerned, that is a very different situation than if I were there and in a position to deal with someone of a reasonable size in order to defend myself and my property in that way. The circumstances cannot be categorised in any particular way.

In 2005, there was an attempt to introduce a Bill—the Criminal Law (Amendment) (Household Protection) Bill—to amend the law. It was introduced by Mr Patrick Mercer, supported by Mr David Davis and various others, in the House of Commons. It wished to replace the term “reasonable force”, whether the jury were considering the force used in defence was reasonable, with the term “grossly disproportionate”. The Bill did not get very far and one only has to stop and think: a jury is considering a whole series of facts around a killing; it considers that the defendant has acted unreasonably, but has he acted “grossly disproportionately”? You can imagine a debate taking place in a jury room to decide on the difference between being unreasonable, acting beyond reason, and acting with gross disproportionality. That sort of debate should not be left to juries, which approach these matters in a completely common-sense way, having regard to all the facts and circumstances put before them. While I sympathise to a certain extent with those concerned with some cases that come before the courts which seem to be grossly unfair, the law covers the situation and has done so since 1761 and before that time.

What concerns me is the concept that the decision as to what was reasonable should be taken by the police—that a householder should never be arrested and questioned if he has killed someone who has been an intruder. That cannot be right. The death of a person is extremely important and, whatever he may or may not have done, it is right that he should be arrested and that he should be questioned. If he has genuinely been acting in fear and in self-defence, undoubtedly he will give his view and his account of what happened at that point, a circumstance which the jury will no doubt take into account.

A person who has killed somebody, whatever the circumstances, is liable to arrest and questioning and, if necessary, detention until the whole matter can be sorted out. It is right that the decision should not be taken by the police and not even by the Director of Public Prosecutions, to whom the file is sent. It is for 12 people drawn from all parts of the community who should have put before them on the evidence all the circumstances and who should decide, using their common sense, which they undoubtedly have, whether that person was acting unreasonably when he killed the deceased.

The problem is that Parliament has sometimes, and certainly over the past 13 years, failed to recognise the absolute value of having people from the community decide issues like this and has tried in various ways to put boundaries around the thinking of a jury, which is entirely inappropriate. Self-defence, that firm principle embedded in our common law going back centuries, is a matter for the jury to determine. Do not let us ever get away from that.

--- Later in debate ---

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

My Lords, I am extremely grateful to all noble Lords for their contributions to this debate. Although it has been a short debate, it has been extremely informative and worth while. I pay particular tribute to the noble Lord, Lord Blencathra, in introducing it. I have told him before that one of my very dear friends, now no longer with us, was Lord Gray of Contin. I remember Hamish telling me that he had found a bright, new young star for the Conservative Party for whom he predicted great things. I am sure that it would have given Hamish great pleasure to have been here today to hear the noble Lord introduce these matters with such authority and passion.

The noble Lord, Lord Bach, ended with some interesting quotes, including “state-sponsored revenge” and “sentencing … in the home”. It is worth while stating from the beginning that this is not the Government’s intention or the direction of travel. I hope that my reply to the contributions that have been made in the debate will make that quite clear.

I am not a lawyer, so, unlike the noble Lord, Lord Thomas, or the noble Lord, Lord Bach, I cannot unfortunately call on experience from various cases. My only experience is that I once chased a burglar down the street in my pyjamas in my bare feet. I was 21 at the time but I could not catch him even then, so I cannot tell what I would have done if I had caught up with him.

[Lord Thomas of Gresford]

Does the Minister accept that if he had chased after him and had beaten him up then, that would have been revenge and not self-defence?

[Lord McNally]

By the time I had reached the end of a rather long road near Archway, I was so exhausted that I doubt that I would have inflicted much damage on him.

However, I understand the point made by the noble Lord, Lord Blencathra. Someone breaking into your own home is a terrifying experience. A noble Baroness in this House—I will not name her because I did not get her permission—told me about a burglary and what a trauma it was for her. Interestingly enough, the healing for her came when the burglar was arrested later and she was asked whether she would like to meet him. Her reason for telling me the story was to advocate the benefits of restorative justice. She said that whereas what she had confronted in her flat was a terrifying situation and someone she was very frightened of, when she met a rather pathetic drug addict who had broken in in the hope of getting something to feed his drug addiction the terror somehow drained away. Her story was a little bit of anecdotal evidence of restorative justice in action and benefiting the victim.

The noble Lord, Lord Bach, asked about the Human Rights Act and the ECHR. As he well knows, any proposals that we would have to make—

Industrial Tribunals: Fees

Lord Thomas of Gresford Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord McNally]

My Lords, there is no aim to go back to what the noble Lord, Lord Martin, could rightly describe as the “bad old days”. The industrial tribunals system will remain and people will still have access to it. We expect that the tribunals will have the power to order that unsuccessful parties reimburse the fee paid by the successful party so that costs are ultimately borne by the party which causes the system to be used. There is nothing in the system that does not say that a small proportion of the costs cannot be charged. We do not believe that that would fundamentally undermine the very good work that the tribunal system does.

[Lord Thomas of Gresford]

My Lords, does my noble friend accept that meritorious claims will be as much discouraged by the imposition of fees as vexatious ones? The Government should not base their policy of charging fees on trying to limit the number of cases that come to the tribunals. My noble friend will recall the discussion that we had about this in the immigration appeals tribunal last week.

[Lord McNally]

My Lords, I suspect that we will have discussions along these lines over a range of issues. I suspect that small charges for access to courts such as the tribunal service will not have a deterrent effect on meritorious cases. One small range of consultations suggested that there might be a small fall-off in applications with the introduction of fees. As part of the consultation that will take place in December, we hope to widen that impact assessment to make sure that we are going down the right road. Between 2001 and 2010, there was an 81 per cent increase in cases going to employment tribunals. There is a limit to what a free service at the taxpayers’ expense can bear.

Legal Aid

Lord Thomas of Gresford Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord McNally]

My Lords, I can not give a precise answer to that, but the LSC has taken a number of steps to expedite payments to contracted providers and is committed to investigating any claim where a bill is not paid within the correct timescale. While there have recently been some delays in civil bill processing, the LSC maintains that the vast majority of payments are being made within their published target times. I will, however, look at the matter of quarterly payments.

[Lord Thomas of Gresford]

Is my noble friend aware that the Law Society has had to write to banks, asking them to treat legal aid practitioners with special care, because of a backlog in payments by the Legal Services Commission, and is his response—that they are all paid on time—not a little disingenuous? Is there not a very considerable backlog at the moment?

[Lord McNally]

My Lords, I did not say that they were all being paid on time, but I did say that the Legal Services Commission is addressing the problem that has arisen. A backlog had built up and the commission faced criticism, but it has addressed the problem and is moving to cut the backlog. So I am not being disingenuous in any way. I am acknowledging that there has been a problem, which the commission is addressing. It maintains that the vast majority of payments are being made within their published target times.

First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Lord Thomas of Gresford Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, my noble friend said in introducing this order that many of the appeals are “wholly without merit”. The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.

The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action—that is, he takes a decision to start a case by the issue of a writ or a summons—but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.

We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,

“the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so”.

However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.

It is not surprising, as paragraph 8.2 of the memorandum reveals, that:

“Respondents to the consultation were generally opposed to the introduction of fees”.

Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,

“unanimous in their view that appellants should not pay”.

The Government have indeed responded to that.

One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under “Key assumptions” it says:

“It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates”—

it is a guess, in other words. It goes on to say:

“The Home Office is implementing significant changes to the UK’s immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal”.

The Government’s own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:

“The future success rate of appeals is unknown in which a cost award is made against UKBA”.

We are still in the realms of complete ignorance as to the effects of these proposals.

Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under “Appellants”:

“Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable”.

That assertion does not follow from the research that was done in 2003.

Paragraph 3.4 in the “Economic rationale” section says:

“The absence of fees means that the service is ‘over-consumed’”—

in other words, too many people appeal. It goes on to say that the users,

“are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this ‘over-consumption’ is the failure rate of appeals, which represented a majority in each of the four main appeal types … disposed of in recent years”—

because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.

Paragraph 4.2, under “Cost Benefit Analysis”, says:

“We have no information on the scale of”,

fees for appeals that,

“will be paid by people living outside of the UK”.

Paragraph 4.3 says:

“We cannot predict how appellants will respond to the introduction of fee-charging”.

It goes on to say:

“For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect”.

Paragraph 4.6 points out that,

“there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one”,

and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.

When we look at ongoing costs, paragraph 4.27 says:

“These costs are likely to involve dealing with an increased volume of customer enquiries … and with the operation of a contract to collect, bank and administer the fee”.

There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:

“We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases”—

that is regarded as a saving. In addition it says in paragraph 4.31 that,

“it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. … However, it has not been possible to estimate these financial impacts at this time”.

Then, in paragraph 4.32, it says:

“UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee”.

Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:

“In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal’s operating cost savings are based on”—

various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.

I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.

That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend’s speech just now.

I draw some comfort from all that, and also from the fact—which I probably have in common with the noble Lord on the opposition Front Bench—that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011

Lord Thomas of Gresford Excerpts

Wednesday 20th July 2011 Lords Chamber

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

My Lords, with the leave of the House, I beg to move the four Motions standing in my name on the Order Paper en bloc.

[Lord Thomas of Gresford]

My Lords, in relation to the Rehabilitation of Offenders Act order, the Minister will recall that when we discussed the matter in Grand Committee we raised very considerable difficulties about owners and managers not having clearance with regard to convictions. Can my noble friend assist with the worries raised at that time?

[Lord McNally]

My Lords, my noble friend is referring to the new alternative business structures for legal firms. It is true that both he and my noble friend Lord Hunt raised these points in Committee, and I agreed to take the matter back to ministerial colleagues if they would allow this order to proceed. I have done so, and Ministers have agreed that consideration and a decision in respect of the business case for the inclusion in the exceptions order of owners and managers of alternative business structures should be made as soon as possible. In the event that the Ministers agree that any addition should be made to the exceptions orders, I assure Members that this work will be expedited and an amendment will be prepared as a matter of urgency. On that basis, I hope that the House will allow the order to go through.