Crown Prosecution Service
Debate between Lord Wallace of Tankerness and Lord Bach(9 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, by next year the Crown Prosecution Service will have successfully achieved cash savings of 24% since 2010-11 through structured cost reductions. By focusing on reducing the costs of accommodation, IT and HQ functions, the department has maintained or improved performance against many key performance measures.
Lord Bach (Lab)
My Lords, I thank the noble and learned Lord for his Answer. We all of course want to see the Crown Prosecution Service succeed. It has a vital role to play in our criminal justice system and, in recent years, has been particularly well led. However, as part of the cuts to which the noble and learned Lord referred and the 24% real-terms reduction in its budget, at the present time it has to advise and prosecute, among other things, some very old, serious and complex sex allegations. Does the noble and learned Lord support the recent request from the Director of Public Prosecutions for an up to £50 million increase in this year’s budget? What steps are his department taking to obtain the Chancellor of the Exchequer’s support?
Lord Wallace of Tankerness
My Lords, I think I am right in saying that this is the first time the noble Lord, Lord Bach, has been at the Dispatch Box in his new role as Shadow Attorney-General. I want to congratulate him on his appointment to that role. I share his view that the Crown Prosecution Service has performed exceptionally well and has been exceptionally well led in recent times. With regard to his specific question, he is absolutely right to say that there have been a number of large and complex cases, including historic child abuse, violence against women and terrorism matters. CPS officials are working closely with Her Majesty’s Treasury to analyse and manage the impact on the prosecution of the increasing number of large and complex cases to ensure that there are enough resources in place to tackle crime effectively and efficiently. The department will continue to assess and reprioritise resources where possible. Obviously, future funding will be determined as part of the spending review process in the normal way, informed by the analyses which are taking place.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 8 months ago)
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Lord Wallace of Tankerness
My Lords, the House had the opportunity to debate issues similar to those raised in the amendment during detailed discussions in Committee and on Report. As the noble Lord, Lord Pannick, indicated, my noble and learned friend Lord Mackay of Clashfern came up with the phrase “in the interests of justice to prevent injustice”, which I said at the time had a certain seductive charm and that I would think about it. The noble Lord, Lord Pannick, moved the amendment and argued his case with seductive charm, as did the noble Lord, Lord Hart. The noble and learned Lord, Lord Woolf, was very much to the point, as was, very briefly, the noble Lord, Lord Bach.
I can assure the House that we have thought about these points. The Government believe it is right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice, and Clause 10 achieves this important end. It will be necessary to provide services to an individual under Clause 10(3)(a), where a failure to provide some measure of legal aid would, for example, clearly amount to a breach of Article 6 of the European Convention on Human Rights, which guarantees an individual’s right to a fair trial and access to the courts.
As has been said on a number of occasions when we have debated exceptional funding determinations under what was Clause 9 but is now Clause 10(3), they will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
In considering whether legal aid should be provided in an individual case engaging Article 6, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individuals to represent themselves effectively; and the alternative means of securing access to justice.
It is not lost on me that the noble and noble and learned Lords who tabled the amendment have carefully mirrored the existing formulation of the clause in their proposed addition. I thank, particularly, the noble and learned Lord, Lord Mackay of Clashfern, for triggering this discussion and this line of thought in Committee. I again assure the House that I have considered the alternative formulation carefully. However, as I said on Report, we are satisfied that the provision that the Bill currently makes in respect of excluded cases is both appropriate and sufficient.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 9 months ago)
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Lord Wallace of Tankerness
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.
The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.
I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.
Lord Bach
My Lords, we agree with the amendments in this group. In Committee, the noble Lord, Lord Avebury, said:
“Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom”—
that was the phrase he used—
“whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted”.—[Official Report, 24/1/12; col. 928.]
In his reply, will the Minister explain to the House why the Government took that decision and changed the policy that had been set up under the previous Government?
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.
I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.
Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.
I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.
I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.
It has been argued that our approach in the Bill cuts across case law that permits public law arguments to be raised in possession proceedings themselves, a point made by my noble friend. As we discussed when we met, along with colleagues from the Community Law Partnership, the Government do not necessarily accept that argument. It is correct that case law has developed so as to allow public law arguments to be raised directly in possession proceedings. Our proposals in relation to legal aid do not affect that. However, there is no legal bar on seeking a judicial review of a public authority’s decision to bring possession proceedings.
We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.
It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.
In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.
I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill’s provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.
I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession proceedings to evict them. Therefore, we do not accept the argument that the Bill’s trespass exclusion now targets Gypsies and Travellers in particular.
Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government’s draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.
As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion—a question was raised as to why nothing has actually been paid out yet—but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency’s established programme management framework, with quarterly contract review meetings forming part of the process.
The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.
As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.
The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.
If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.
Lord Bach
My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government’s thinking on the structure of Part1 of the Bill.
We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.
We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:
“My second point is that, although ‘the interests of justice’ is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase ‘the interests of justice’”.
In response, the noble and learned Lord said:
“I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm.”
That is the phrase that the noble and learned Lord, Lord Wallace, used. He continued, with his usual careful caution:
“I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about”.—[Official Report, 24/1/12; col. 989.]
This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very well with the debate that we had earlier this evening, in which the Government found few friends around the House as regards their argument. I suspect that there are very few friends in the House at present as regards what the noble and learned Lord may say about Amendment 93A. We back it.
The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client’s vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.
My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government’s intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.
Lord Wallace of Tankerness
My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.
I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.
It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.
I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.
My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.
Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.
The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.
Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.
In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.
Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.
My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.
Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.
Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.
As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.
The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.
I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.
Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.
The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.
The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.
We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.
We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.
I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,
“reasonable costs incurred by any person making a successful funding application under this section”.
Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.
I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.
Lord Wallace of Tankerness
My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.
The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.
I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 9 months ago)
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Lord Bach
Very briefly, we agree in principle with the noble Lord and his amendments. After today, the Bill will have Amendment 12 in it. That deals with welfare benefit appeals and is phrased in a rather different way from Amendments 22 and 78, although Amendment 22 is on the social entitlement chamber and talks about the same sort of appeals as the House passed in Amendment 12. I look forward to hearing what the Minister will say on that position and the points that the noble Lord, Lord Thomas of Gresford, has made.
Lord Wallace of Tankerness
My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.
My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.
Lord Bach
My Lords, we continue to support this theme of amendments. There were two in Committee moved by the noble and learned Baroness, Lady Butler-Sloss. We supported them then and described them as powerful amendments. Amendment 69 remains a powerful amendment. We look forward to hearing what the Minister has to say. We hope and expect him to be sympathetic.
Lord Wallace of Tankerness
My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.
On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.
My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.
It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.
Assisted Dying
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on introducing this debate, and those who have contributed to it. Noble Lords have actually left me with 20 minutes but I shall not take up all that time. The succinctness with which some very passionate points of view have been expressed is remarkable. I have heard the comments made by a number of those who have contributed to the debate about the opportunity for a longer debate on this. I would not dream of speaking on behalf of the usual channels’ business managers, but I am sure that that will have been noted on this occasion, as indeed on an occasion when the noble Lord, Lord Bach, dealt with this issue in a Grand Committee debate when he was in Government.
Lord Wallace of Tankerness
It was not quite this issue but it was related. There was also a debate in Grand Committee in February 2010 on assisted suicide to which there were many contributors, and the importance of this issue and the salient points that have been made will have been noted. It is evident that this matter generates much passion on both sides of the argument.
At the outset, I would like to make the distinction, as a number of contributors have done, between the form of the law on assisted suicide on the one hand, which is, quite properly, a matter for Parliament—I endorse what the noble Lord, Lord Bach, said: just like the Government of which he was a member, this Government also take the view that a change to the law is an issue of individual conscience. Therefore, it is a matter for Parliament to decide whether there should be a change to the law rather than one of government policy—and the prosecution policy of the Director of Public Prosecutions on the other. The DPP discharges his functions and duties within a framework determined by Parliament.
Perhaps it is important to put the position into context to be able to respond to some of the points. To understand how the policy works in practice, the Crown Prosecution Service was established by legislation as an independent public prosecution service for England and Wales. The Director of Public Prosecutions is the head of the CPS, and—to reflect the point made by my noble friend Lady Berridge—the DPP is superintended by my right honourable friend the Attorney-General, who is in turn accountable to Parliament for the work of the CPS. There is a distinction, however, between that accountability, which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.
The primary role of the CPS is to prosecute criminal cases investigated by the police in England and Wales and to provide advice to the police in some of the most serious or complex cases. However, I emphasise again that the CPS operates independently of the police.
The Director of Public Prosecutions has a statutory duty to issue a code for Crown prosecutors. This is one of the most important documents for the CPS, as the code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. In particular, the code sets out the full code test. That is the test applied by prosecutors to the facts and circumstances of every individual case referred to them by the police. It has two stages to it. First, there is the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, there is the public interest stage: is it in the public interest to proceed with a prosecution?
It is nearly always the case that the public interest is considered only when the evidential stage of the full code test has been satisfied. It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the full code test. It is essential that the public interest is considered by prosecutors when making a decision on an individual case. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution—the point that the noble and learned Lord, Lord Hope, made in his judgment in the Purdy case, to which reference has been made—as the public interest must always be considered.
The most recent edition of the code was published in February 2010 following public consultation. It is a public document and is written in a way that enables it to be followed by the general reader so that the public are able to understand how prosecution decisions are made. However, with relevance to this particular debate, in addition to the code the DPP also publishes public policies and guidance that provide further advice to prosecutors when considering particular types of cases. The various policies and pieces of guidance are expected to be followed by prosecutors and must be read in conjunction with the code.
The policies and guidance are also available on the CPS website, again to provide transparency. The noble Viscount, Lord Craigavon, asked about transparency. As well as setting out the policy guidance, the website also sets out a few individual cases, giving the facts of the case and the route that the DPP took in coming to his decision not to prosecute. The particular case that I am thinking of is set out there. Hopefully, that will at least to some extent aid the transparency that the noble Viscount and others have asked for. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of these documents.
It is important, as has been recognised in many of the contributions to the debate, that the policies and guidance issued by the DPP are not intended to be a substitute for the law or to replace it in some way. A number of those who have contributed to the debate—even those who have called for a change in the law—have reflected on the fact that the policies are imbued with a sense of compassion. More than one contributor talked about the law providing deterrence and the policy guidelines from the DPP enabling the law to be discharged with compassion. The guidelines are there to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedures and any specific evidential and public interest factors to be taken into account. That is the purpose of the policies and guidance. They are subservient to and operate within the framework of the law as determined by Parliament.
The assisted suicide policy was published in its present form following an interim policy and consultation in February 2010. As the noble Baroness said in introducing the debate, we are coming up to the second anniversary of that policy being in place. As has been indicated, it followed the judgment in the House of Lords case of Purdy v Director of Public Prosecutions. Debbie Purdy sought information about the factors that the DPP would take into account in deciding whether to grant his consent to a prosecution under Section 2 of the Suicide Act 1961. Ms Purdy argued that the code issued by the DPP was insufficiently precise to provide her with the information that she sought. In July 2009, the Appellate Committee of the House of Lords found in favour of Ms Purdy. In so finding, the Law Lords required,
“the director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding … whether or not to consent to a prosecution under section 2(1) of the 1961 Act.”.
As I have indicated, an interim assisted suicide policy was published in September 2009. It was the subject of a three-month public consultation, in which more than 4,700 responses were received from interested individuals and organisations. The interim assisted suicide policy was revised by the DPP following careful consideration of the responses to the public consultation. The final version was published in February 2010. At the time of its publication, the revised policy met with broad approval. It is fair to say that it attracted considerable approval from many sides of the Chamber this evening. It is interesting to note that, while the commission that has been referred to, which was chaired by the noble and learned Lord, Lord Falconer, recommended changes to the law on assisted suicide in cases where a person is terminally ill, in cases where there is a non-terminal illness, it indicated the following in its executive summary:
“Therefore, we suggest that the DPP’s prosecution policy should continue to be applied to those cases that might fall outside the scope of the legislation that we are proposing for consideration (for example assisted suicides involving people with chronic illnesses or serious physical impairments who are not terminally ill)”.
Even the commission itself recognised the merit and substance of the policy. It is worth repeating that it does not seek to change the law. Indeed, it cannot change the law, as that is clearly a change that only Parliament can make.
I shall take up some of the specific points that have been made. Prospective immunity was raised. Prospective immunity has never been granted. The DPP told the commission that,
“the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not. Various rulings of the courts have indicated that that would be a wrong position for the prosecutor to adopt and therefore we haven’t done that”.
Indeed, it goes beyond the DPP’s power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.
With regard to the medical profession, the guidelines try to strike a balance but acknowledge that as the law stands the law does not give immunity from prosecution in this regard. I do not wish to quote at great length from the evidence of the Director of Public Prosecutions to the commission. However, he set out the balance that he has sought to apply in the policy. The policy guidelines do not refer to a medical doctor but to a person,
“acting in his or her capacity as a medical doctor”.
It would be wrong to confer blanket immunity, if that is how it would be interpreted. That would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law. As has been said, that is a change in the law that is for Parliament to determine.
With regard to families and doctors discussing end-of-life options, the noble Baroness, Lady Finlay, indicated that she did not think such discussions were taking place. Again, however, that is a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it.
It is very difficult to do justice to such a wide issue. In that respect, I have a lot of sympathy with those who think that we should have a much wider debate. I have tried to pick up some of the salient points that have been made. My noble friend Lord Glasgow was not alone in indicating that perhaps the time had come for a change in the law. As I have indicated, that is not a matter of government policy but is a matter for individual conscience and for Parliament. However, I rather suspect that we will be back here debating this issue in days to come.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 10 months ago)
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Lord Wallace of Tankerness
To pick up my noble friend Lord Thomas’s point, I do not think I ever suggested that tribunals were a cosy chat; indeed, I suggested that they were of a somewhat different nature from those of 30 or 40 years ago. However, we should not lose sight of the fact that employment tribunals were designed to be simple and accessible, and that the parties can make a response to a claim without the need for representation. Similarly, an employment tribunal and its chairman must, so far as is practical, ensure that the parties are on an equal footing—that is actually in the rules.
With regard to what the noble Lord, Lord Pannick, says, it is the case that where an employment claim involves both discrimination and non-discrimination matters, we will consider that under the rules that we put in place for connected matters under paragraph 40 of Part 1 of Schedule 1 to the Bill. Those rules will be set out in regulation but, as with any application that is within scope, this will not necessarily bring in these cases automatically. Of course there is still the merits test, albeit that it was a category that was in scope.
Lord Bach
My Lords, I am very grateful to all noble Lords who have taken part in what I was going to describe as a short debate but is now a medium-sized one. None the less, it has been a passionate debate, with many strong views being expressed. I am grateful, too, to the Minister for answering the sometimes difficult questions that were rightly posed to him. I am particularly glad to thank the noble and learned Lord for acting as a recruiting sergeant for trade unions. Speaking as a member of a trade union, I think that that is a splendid thing to do from the government Front Bench. He is quite right; this is a strong argument for people to join trade unions and get the help that that brings. I know he was making a serious point.
On this occasion, the Government and even the noble and learned Lord are being rather naive about tribunals. It seems that the best justification for what the Government are doing is that because tribunals were designed to be informal, they are therefore informal and it is fine for individuals to represent themselves in person on a regular basis, even when the other side is represented by a QC or a lawyer of any kind. There is nothing that the tribunal can do to make it fair if that is the position. One thing that the state has done to make it fairer is to give individuals who do not have the benefit of trade union membership or any other resource—who do not have the money to pay for lawyers—some legal advice and, in occasional cases, representation at a tribunal, just to equalise the situation a little. I have no doubt that employment tribunal judges and the lay members who sit on tribunals welcome the fact that individuals have had advice or are, on occasions, represented. That makes their task that much easier than it is when there is complete inequality of arms.
I ask the Government why they are making a system that works pretty well at the moment more unfair and more likely to lead to injustice—this is true about a whole range of these issues but we are talking here about employment tribunals—for savings of some £4 million a year. That is if there will be savings, but I will come to that. Many arguments have been put forward against this change from all sides of the Committee this afternoon.
The question that I want to ask is: given that the only possible reason for doing this is to save some public money—we know, of course, that public money must be saved—is the Minister really satisfied that this will save any money at all? The obvious consequence of there being no legal aid is that bad cases will be taken forward by individuals, which will clog up the tribunal and slow it down because the individual will not have had advice or representation. Good cases will not be pursued, which is an attack on justice, or, if they are pursued, will take much longer to be heard because of the large number of bad cases that suddenly find themselves before the tribunal.
Lord Bach
The Minister is making an important point, and he is justified in making it, but it is false. We have set out what we would have done to make savings in the legal aid budget. Our proposals would have applied largely to the criminal law, and particularly to the role of solicitors. Although I am prepared to go into details, the Committee would not be very interested in it at this stage. Our proposals would have saved a considerable amount of money. The Law Society itself has made recommendations on savings. I know that noble Lords from the Liberal Democrat Benches will later suggest a possible source of savings on criminal legal aid as well. There are alternatives out there. The one thing we committed ourselves not to do was to cut social welfare law, because we recognise that, for a relatively small amount of money, it did an incredible amount of good. Our opposition to the Government is based on the fact that they have picked on social welfare law, attempting to decimate it so that it no longer exists. That is a justified criticism that has not yet been answered.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Lord for setting out that position. As he said, we will come to issues of criminal legal aid later today—I hope; I am sure.
This is going over old ground, but it is important. The scale of the deficit reduction that has been required exceeded what many of us thought before we came into government in May 2010. As I said, that has resulted in some difficult decisions. On two occasions, the noble Lord, Lord Beecham, said that it was unfair to make that point with regard to professional negligence cases. He cited the response to the consultation, when we said that those were claims concerned primarily with recovering damages and that we considered that their relative importance was generally low compared, for example, with issues of safety and liberty. He seemed to say that that is so blatantly true that it does not add anything.
If one has limited resources, those are the kind of priority judgments that must be made. In Schedule 1, we have tried to apply those priorities in different circumstances. Again citing the response, he said that people who would be bringing damages claims were not likely in general to be vulnerable compared with detained mental health patients and elderly care home residents, who are unable to present their own case. He agreed that that is clearly the case. If we have to establish priorities, I think he would agree that priority would go to a detained mental health patient or an elderly care home resident.
If there was an unlimited fund of resources, the noble Lord’s point would have far more force, but given that there is not, given that decisions have had to be made as to what comes within scope and what does not, I think the balance that we have sought to strike of giving precedence to issues of life, liberty and homelessness is proper.
It is for that reason that we did not include consumer claims within the scope. The noble Lord raised the question of professional negligence cases. It is fair to say that, when we come to Part 2, conditional fee agreements may be available for cases involving damages. That makes the provision of legal aid in such cases less likely to be justified. As has already been well rehearsed, other sources of advice are available on consumer matters. There are trading standards officers, Consumer Direct and alternative non-court based solutions through regulators or ombudsmen—such as the Financial Ombudsman Service for people with complaints about financial services or Otelo for complaints relating to telecommunications.
The noble Baroness, Lady Howe, talked about the cut in CABs’ funding. Of course, there will be an impact on CABs’ funding from legal aid, although it is estimated that that is only 15 per cent of CABs’ funding. At the risk of saying this yet again, the Chamber will be well aware that the Government announced a further £20 million funding in June last year for not-for-profit advice agencies and are considering funding for future years. Last February, £27 million was announced for continued funding administered by the Department for Business, Innovation and Skills for this financial year to maintain the face-to-face debt advice programme in citizen's advice bureaux and other independent advice agencies across England and Wales.
To pick up the important point made by the noble and learned Lord, Lord Goldsmith, additional funding has been announced for not-for-profit advice agencies, and the Government are considering funding for those organisations for future years. As parallels the previous debate, we will retain legal aid for consumer matters where they concern an alleged contravention of the Equality Act 2010. Many cases involving the Equality Act will be within scope.
At the end of the day, it boils down to the fact that, with finite resources, priorities have to be made. We have had one of, if not the most, generously funded legal aid schemes in the world. Even after the changes are implemented, should the House pass the Bill, it will still be a very generously funded legal aid system. Regrettably, some choices are very difficult, but I hope that the priorities we have identified stand up to scrutiny. It is more than axiomatic that when you have limited funds, life, liberty and dealing with homelessness and discrimination are important and that people who are less able to articulate their case or defend themselves should have priority. On that basis, I urge the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person—and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
Lord Wallace of Tankerness
My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid—albeit subject to the relevant court certifying one of the matters listed in the amendment—for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.
Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9.
Lord Wallace of Tankerness
My Lords, the government amendments in this group in the name of my noble friend Lord McNally are designed to give better effect to the stated policy intention.
Under the proposals that we are putting forward, advocacy should be available for preliminary and incidental proceedings only where those proceedings take place in the same forum or venue as the proceedings that are in scope. We do not believe that this is sufficiently clear in the Bill as currently drafted. Therefore, Amendment 90D deletes from paragraph 5 of Part 4 of Schedule 1 the reference to Part 3, and Amendment 90E introduces a new sub-paragraph that clearly sets out that advocacy will be available in preliminary or incidental proceedings in the same venue as those set out in Part 3.
Amendment 90F is consequential to the amendments that I have just described. Amendment 90G inserts a new sub-paragraph to provide a power that allows regulations to make provision on when one set of proceedings is related to another. Amendment 90C makes it clear that advocacy for an in-scope area will be available in relation to bail proceedings and enforcement proceedings in any venue. Amendment 90B has been tabled to ensure that correct references are made in paragraph 24 in relation to the rest of Part 3. More technically, Amendment 90ZA corrects a slip in the original drafting and makes the wording of paragraph 10 of Part 3 of Schedule 1, which is about advocacy for the Mental Health Review Tribunal for Wales, consistent with the wording of the rest of Part 3 of Schedule 1. I beg to move.
Lord Wallace of Tankerness
No. When debating clinical negligence cases we agreed that they did not fall within Schedule 1. However, clinical negligence cases would be exceptional if they met the criteria set out in Clause 9. In particular I go back to the debate on the criteria which relate to the individual’s convention rights within the meaning of the Human Rights Act 1998. The noble Lord, Lord Pannick, said that this is a floor operation rather than a ceiling operation but, nevertheless, Article 6 of the European convention is an important threshold and, in that respect, is exceptional. I hope I have not made things less clear. The policy is to limit this to where a failure to accept cases and make an exceptional determination would breach an individual’s convention rights or any right to the provision of legal services enforceable under European Union law. That is the nature of the exceptional circumstances.
If we go any further we will probably tie ourselves up in knots. We almost got there when we were looking at clinical negligence cases in which the exceptional circumstances as defined here, with particular reference to convention rights, would apply.
Lord Bach
My Lords, before the noble Lord, Lord Thomas of Gresford, replies to the debate, I hint to the Minister that he should listen very carefully both to what the noble and learned Lord, Lord Mackay, suggested and to what the noble Lord, Lord Thomas of Gresford, invited him to say about the expression “exceptional”. Can he also let us know—not in due course but reasonably quickly—some more details about how it is intended that Clause 9 will work and the kind of funding that will be available under it? He said those questions would be replied to in due course, but it is important before we pass Report in this case to know a bit more about the Government’s intentions in Clause 9.
My real point in getting to my feet now is that, though I may have missed what the Minister said, I do not think he answered my short query about whether the way that Clause 9 is drafted at the moment excludes any prospect of legal aid for initial advice and assistance. That is an important point in relation to the fact that that initial advice can stop things in their tracks at a much earlier stage and save the legal aid fund a lot of money.
Lord Wallace of Tankerness
My Lords, first, I indicated when replying to my noble and learned friend Lord Mackay of Clashfern that I certainly want to reflect on what he said. It would be wise to do so. On the question that the noble Lord raised, I think I replied but I can quite understand in the context of my reply that the noble Lord did not hear it. I now want to make sure that I get it right. My reply was to the effect that initial advice and assistance could in principle be granted under Clause 9, to the extent that to grant it would be necessary to avoid a breach of the individual’s rights, for example, under Article 6. That is perhaps not as wide as the noble Lord hoped, but in principle there could be circumstances where it would be available.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 11 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the noble and learned Baroness, Lady Butler-Sloss, indicated when speaking to her amendments that they were the last two that she had in this section. None the less, in dealing with vulnerable people, their importance was obvious by the end of the debate that they engendered. The more that I have learnt about human trafficking over the years, the more appalled and outraged I am by some of the abuses that go on. Various conventions have been acknowledged, such as the Council of Europe Action against the Trafficking of Human Beings, to which the previous Administration quite properly signed up.
Amendments 61A and 90A intend to bring into scope particular areas of legal aid for victims of human trafficking. Amendment 61A would give the victims of such trafficking legal aid for immigration matters as well as for damages in compensation claims in relation to the experiences of trafficking before the Criminal Injuries Compensation Authority, the civil courts and the Employment Tribunal. Amendment 90A would allow for publicly funded advocacy for victims of human trafficking in cases that they bring before the Employment Appeal Tribunal.
On the immigration element of Amendment 61A, the first point to make is a general one that was reflected in one or two contributions. In many cases, victims of trafficking want to return home. In some cases, though, they wish to claim asylum, and, for that, legal aid will remain. It is important that that point is made clear. There may be other occasions where they need to remain in the country, perhaps to help police with their investigations or on compassionate grounds if there are compelling reasons for that. There are provisions for victims to remain in these circumstances.
As the Committee will know, the Government provide funding of some £2 million per year to the Salvation Army to provide support to victims of trafficking so that they can rebuild their lives. This includes signposting and informing victims of their rights to stay in the country, whether in the short or long term. However, we believe that specialist legal advice in respect of immigration on top of that is not required. Nevertheless, the Salvation Amy and its subcontractors signpost and inform victims of their legal rights.
Government funding also helps to inform people about their options regarding compensation as a result of trafficking, whether through the Criminal Injuries Compensation Authority, the civil courts or the Employment Tribunal. Compensation orders, too, can be made at the end of a criminal trial.
For the civil routes to compensation, which a number of contributions have revolved around, the Government made it clear in their response to the consultation on legal aid reform that the route for funding in these cases would be the exceptional funding scheme, and published guidance will reflect that. In fairness, the noble Lord, Lord Bach, acknowledged the Government’s position, although he did not agree with it, and it would be unfortunate if this debate gave the impression that all avenues of funding have been cut off or withdrawn.
The noble and learned Baroness, Lady Butler-Sloss, asked whether it would be possible to make claims against traffickers and whether those claims would be funded. The answer is yes—they are capable of being funded through exceptional funding. This is because the right to legal support for compensation claims, as set out in the convention, is with reference to the requirements of Article 6 of the European Convention on Human Rights and is therefore very much in line with the exceptional funding test. It is important to recognise that there is a route for funding for people who find themselves in these circumstances.
Amendment 90A would allow for advocacy for victims of trafficking in employment appeal tribunals. The noble and learned Baroness raised the question of the consultation on visas for domestic workers, a point picked up by my noble friend Lord Avebury. My understanding is that a Home Office consultation has taken place; as far as I am aware, no response has yet been published, but I will certainly ask officials to ensure that the comments made on that important point are drawn to the attention of those at the Home Office who are dealing with the consultation.
With regard to the Employment Appeal Tribunal, it has been observed that some very large awards can be made. Again, however, such cases would in principle be funded through the exceptional funding scheme if required by not only the European Convention on Human Rights but European Union law. The exceptional funding scheme is available in these cases—it is not the case that support has been withdrawn. There are other means of support for those who have been trafficked. As I have said, the Salvation Army has made efforts to support and assist them. Therefore, I ask the noble and learned Baroness to withdraw her amendment.
Lord Bach
My Lords, the noble Lord, Lord Avebury, has made a very powerful case for the amendment that he has so ably moved. We support it from the opposition Front Bench, very much for the reason that he was arguing in the latter part of his speech: the complete mismatch between being allowed to get legal aid to get advice on detention but not being able to get any advice as to the underlying reasons why an individual is detained.
The Government are quite right to have recognised that legal aid is crucial when an individual’s liberty is at stake, and we see that principle in existence here in their preparedness to allow someone who is in detention to get legal advice to challenge that detention. However, how on earth can they challenge that detention—and this is the point the noble Lord was making—without also getting legal advice as to the underlying cause of that detention? It does not look as though this could work properly in practice. The Government are trying to hold fast to two principles: that an individual’s liberty demands legal aid advice; but, when that matter is looked into, the reason behind their loss of liberty cannot be advised on in the same way. The noble Lord, Lord Avebury, is quite right: some really serious mistakes will go uncorrected if this provision goes through.
To make the point absolutely clearly—and this is the point that ILPA seems to have made—challenging immigration detention is inextricably linked to challenging the immigration decision that forms the justification for detention. If the Government want to help those detained wrongly—presumably they do; no one wants to have people detained wrongly—it is pretty self-evident that they should deal with the underlying problems. A failure to do so will simply mean a return to detention—a complete waste, frankly, of public money.
Although I have been brief, we on this side believe that the noble Lord, Lord Avebury, and the others who signed the amendment have a very good point. I would like the Minister to explain to the Committee how these provisions can actually work in practice. It looks as though there is a serious mismatch between what they will and will not allow legal aid for in this field.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Avebury for moving his amendment, which relates to issues of immigration and detention. Amendments 68 and 70 would bring into scope of legal aid several legal services in relation to rights to enter and remain in the United Kingdom for anyone who is liable to be detained under the immigration powers.
As a preliminary to his arguments my noble friend suggested that, if the Government wished to save money, we should tackle the UKBA’s decision-making. The UKBA already has a wide-ranging improvement programme under way to continue to improve the quality of its decision-making in asylum and entry claims and in points-based systems, although I would be the first to acknowledge that in any programme like that there is always scope for improvement.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Wallace of Tankerness and Lord Bach(12 years, 11 months ago)
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Lord Wallace of Tankerness
I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources—I think that there is recognition that resources are limited—where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence. The noble and learned Lord, Lord Neill, asked what it covers. The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.
Lord Bach
Why should it be only the most serious abuses that allow the victim to get legal aid? There are all kinds of abuses. We know that there are some petty abuses and perhaps I would agree with the Minister that not every petty abuse should allow the victim to get legal aid. There are very serious abuses, which the noble and learned Lord says his Bill intends to cover, but what about medium-sized abuses? I am talking about abuses that are pretty severe for the victim. Should the state be stopped from dealing with those? Why should the victim not be able to get legal aid in order to get a remedy in such a case? Why are the Government saying that the abuse has to be really serious?
Lord Wallace of Tankerness
My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 3 months ago)
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Lord Bach
I disagree entirely with the noble Lord’s point. But I will ask why in that case he thinks that the Government that he supports did not support the suggestion that the noble Lords, Lord Butler and Lord Pannick, made to the Government during the Recess. What was wrong with it, as far as the Government were concerned?
To sum up, there is absolutely nothing unconstitutional about this proposal. Frankly, there was much more unconstitutionality in the way this Bill was dreamed up by the two parties in the coalition as a way of protecting their own party interests—and if one wants proof of that, one only has to look at page 98 of the right honourable David Laws’ book 22 Days in May. For all these reasons, the House should not take any lessons from this Government on constitutional propriety. We will be supporting the amendment.
Lord Wallace of Tankerness
My Lords, anyone who had never known any of the history of this, listening to the remarks of the noble Lord, Lord Bach, would probably be astounded to learn that the Labour Party supported the idea of fixed-term Parliaments in its manifesto, as far back as 1992—
Lord Wallace of Tankerness
My Lords, I look upon it as post-legislative scrutiny. You cannot scrutinise what you have legislated for until it has happened. We will not have had a fixed-term Parliament that has run its full course until 2020. It is as simple as that.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 6 months ago)
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Lord Bach
Following the very brave intervention by the noble Lord, Lord Cormack, I follow him briefly to thank the noble and learned Lord, Lord Wallace of Tankerness, who has conducted his part in this Bill with great skill and understanding. I speak on behalf of my noble and learned friend Lord Falconer of Thoroton, who led for the Opposition on this Bill, in saying that we hold him in the highest respect for the way in which he has dealt with this legislation. It does not stop us thinking that this is completely the wrong way of passing constitutional change in this country, and I believe that if there had been a free vote in this House—here I am looking particularly at Conservative Peers—there certainly would have been four years rather than five. My last hope is the hope that the noble Lord, Lord Cormack, expressed, which is that the Bill is accepted by the Commons as it leaves here today.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lord Cormack and the noble Lord, Lord Bach, for their kind words, which are appreciated. This is an important Bill. It is an important constitutional development. We made it clear at the time that we were not able to support the amendments that gave rise to a sunrise and possibly also a sunset clause. No doubt the other place will consider that constitutional novelty. That apart, this Chamber has engaged in its role of proper scrutiny, improvement and revision, and therefore, subject to what I said about one particular amendment, I think this Bill goes to another place in a better shape than that in which it came here. I thank all noble Lords on all sides of the House who have contributed to that. It has been work well done. Once again, I encourage noble Lords to pass the Bill.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 7 months ago)
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Lord Wallace of Tankerness
My Lords, as has been indicated, the purpose of the operation of the order-making power in Clause 1(5) is to provide, by a resolution of both Houses, for a Parliament to be extended by two months or for an election to be brought forward by up to two months because of an emergency or unforeseen circumstance. The Bill provides for five-year fixed terms and it is envisaged that elections would happen on the first Thursday in May every five years. However, we are conscious that there could be a short-term crisis that would mean that it would not be practicable to hold the election on the prescribed date. As was discussed in earlier debates and again this evening, such a scenario occurred in 2001 when an outbreak of foot and mouth disease meant that it was necessary to delay the date of the local elections in England, which were set by statute, and primary legislation was required. As it was only four years into the Parliament, it did not theoretically affect the date of the general election, although the widely anticipated date of the election was postponed because of the outbreak.
The power would allow the Prime Minister to vary the date by affirmative order by two months, earlier or later. It is worth bearing in mind that the Delegated Powers and Regulatory Reform Committee examined this power and concluded that it,
“does not consider the power to be inappropriate in principle”.
However, it recommended that the Bill should be amended to require that a statement setting out the Prime Minister's reasons for proposing the change of polling date must be laid before both Houses at the same time as the draft order. The Government considered and listened to the recommendation and the case made by the committee and, as noble Lords will recall, made the appropriate amendment in Committee, which indicated that we were ready and willing to respond to the committee.
The power is deliberately framed to be non-prescriptive. It is intended to be used in emergencies when we cannot predict what situation will arise, and to deal with a variety of scenarios. When including this power in the Bill, as my noble friend Lord Norton indicated, we looked at powers in the devolution Acts that allow for the dates of general elections to the devolved institutions to be delayed or brought forward. In the case of the foot and mouth outbreak in 2001, there would have been no point in bringing forward the election.
I accepted earlier that I had struggled to find a reason why we might want to bring forward an election. The noble Lord, Lord Pannick, suggested that the Olympics or the World Cup might be such occasions. We considered these as well. We know that the Olympics are unlikely to be awarded again to Britain for the foreseeable future, given that they will happen here next year. Regrettably, England did not succeed in its bid for the World Cup, and I am not sure that Scotland, Wales or Northern Ireland have a bid in preparation. I offer as a piece of political trivia that, such is the importance of the World Cup, the one parliamentary election in recent times not to be held on Thursday was the Hamilton by-election in 1978, which was held on a Wednesday so that it did not clash with Scotland's opening match in the World Cup in Argentina. I am not sure that it did Scotland much good.
Lord Wallace of Tankerness
My apologies. I am not sure that the World Cup has traditionally been at this time of year. It would clash with the exciting climax to the Premiership and the build-up to the FA Cup final, the Scottish Cup final and the Scottish Premier League, whatever shape or form they may be in by 2026. My point is that we have struggled and we cannot readily think of a situation in which one might wish to bring forward an election.
It was our intention to future-proof the Bill, but, with regard to Amendments 12 and 14 in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks, I do not believe that by accepting them we undermine what we seek to achieve in the Bill. As has been pointed out, if it was necessary to bring forward a scheduled general election because the unforeseen event that none of us can think of actually happens, it would be open to the other place to pass a Dissolution Motion with the support of at least two- thirds of all MPs to trigger an early general election. That point was made by my noble friend Lord Norton. In the light of that, the Government would be willing to support these amendments and I hope your Lordships’ House would be willing to accept them.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 7 months ago)
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Lord Wallace of Tankerness
My Lords, in the Constitution Committee, the noble and learned Lord, Lord Goldsmith, asked my honourable friend Mr Mark Harper about opinion polls which showed public support for establishing fixed terms. These are not old opinion polls: the Populus survey conducted for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms; a poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported the establishment of fixed terms; and a survey by the Scottish Youth Parliament conducted in August 2010 found that 76.4 per cent of the young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament. I accept that the question as to whether it should be four or five years was not put, but there was clearly in the surveys support for the principle of fixed-term Parliaments.
My noble friend Lord Dobbs talked about the opportunity for policies to mature and to be assessed. Therefore, there is an opportunity for accountability because the electorate can see what has been delivered, not only by this Government in the present Parliament, where it may take some time for the necessary remedial measures to work through, but by other Parliaments. It is possible for a Government coming into office at the beginning of five years to plan their legislative programme and the other things that do not require legislation, and at the end of which the public can make their decision and judgment on the effectiveness of the Government over those years. That will help accountability.
Practical issues were raised by a number of noble Lords, not least by my noble friends Lord Renton and Lord Blencathra. The questions of stability, practicality and allowing for accountability point to five years.
Lord Bach
Something is troubling me. If the noble and learned Lord has all these strong arguments against four years rather than five, why was it that his party went into the 2010 general election supporting a fixed-term Parliament of four years? What changed? When did the noble and learned Lord change his mind?
Lord Wallace of Tankerness
My Lords, if the House will bear with me, I shall find the quote from the Liberal Democrat manifesto of last year. It states:
“Introduce fixed-term parliaments to ensure that the Prime Minister of the day cannot change the date of the election to suit themselves”.
As my noble friend Lord Rennard indicated, there is not a reference to four years. However, in the past the party has supported—
Lord Bach
Is the noble and learned Lord really suggesting that the Liberal Democrat party was in favour of five-year fixed Parliaments at the time of the general election of 2010? We know about the Private Member’s Bill that was supported by many of those who are now prominent in Government. Liberal Democrat policy has always been four years. Why has it changed so suddenly?
Lord Wallace of Tankerness
What the noble Lord claimed was in the Liberal Democrat manifesto was inaccurate. I am not shying away from the fact that four years had been Liberal Democrat policy, but everyone knows that you have to have negotiations if you want to get the outcome of a fixed-term Parliament, and that was the negotiation. I have listened to the argument and, heaven forfend, I am persuaded by it. The arguments that have been made for five years are very compelling indeed.
On the point made by my noble friend Lord Blencathra, although there has been a great deal of opinion in favour of four years, we have heard in today’s debate—and from the noble Lords, Lord Armstrong and Lord Butler, in Committee—that the evidence points in favour of five years. I urge the noble and learned Lord to withdraw his amendment.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 8 months ago)
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Lord Bach
My Lords, in supporting my noble friend on his amendment I invite the Government to think very carefully indeed before rejecting it, if that is what they intend to do. I speak from personal experience: in a former life, my noble friend was the regional secretary of the Labour Party in the east Midlands, so I worked extremely closely under him for many years and I can speak to his expert knowledge about running elections. I dare say that the Minister could talk about other individuals whom he worked with in that capacity and, no doubt, those from the Conservative Party could as well, while the fame of the noble Lord, Lord Rennard, goes before him. When you have such experts as my noble friend and the noble Lord, Lord Rennard, speaking with one voice, it behoves the Government to think carefully before rejecting what they suggest.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for his amendment. Clearly, it seeks to dissolve Parliament 21 working days ahead of polling day rather than 17 working days. It is fair to point out that a 21-day timetable would be novel. It is not currently used in local or parliamentary elections; that in itself raises issues. I understand that the Electoral Commission, with which I know the noble Lord has an association, has previously suggested that the electoral timetable might be extended to 25 days. That would, not least, support participation by service voters. The commission has highlighted problems caused by the current election timetable and its associated deadlines for electors, candidates, political parties and electoral administrators. Those were reflected in the experiences that the noble Lord, Lord Kennedy, mentioned. My noble friend Lord Rennard also has experience of them.
The Electoral Commission notes that this change should not be made without a review of further changes that might then be required to the electoral timetable. I assure the Committee that the Government agree that this is an important issue. My right honourable friend the Deputy Prime Minister indicated during Second Reading in the other place that we believe there is merit in exploring an extension to the timetable. I note that, at present, there are different timetables for the elections to the Scottish Parliament, the National Assembly for Wales and, I think, the Northern Ireland Assembly. Therefore, there is merit in looking at this not just in relation to this Bill and future elections to the House of Commons but in looking generally at the election timetable.
The Electoral Commission has pointed out that the matter requires a thorough review to ensure that any change is coherent across the piece. There are practical issues and consequential complexities that have to be considered. It is not as simple as omitting “17” and replacing it with “21”. There are issues about the judgment on where particular milestones would best fall within an extended election timetable. For example, there may be competing views as to when they should fall with regard to nominations. We are anxious that, if we are to extend the timetable, we should find the most effective solution. The deadline for registering to vote is another important issue, as are the current deadlines for postal and proxy votes.
As I have indicated, we do not have experience of a 21-day timetable but the Government agree that this is an important issue and we want to set out our proposals on how we might address it in the future. In asking the noble Lord to withdraw his amendment, I hope he will accept that the Government recognise that there are much wider issues to deal with here, and that 21 days is perhaps not the appropriate length of time. We should look at the totality of a longer electoral timetable, but it would not be appropriate to amend it in this Bill.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 9 months ago)
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Lord Bach
The Committee will see the powerful nature of the argument the noble Lord, Lord Tyler, makes, but whether that absolutely precludes some amendment of the type that the noble Lord, Lord Norton, has put before the Committee tonight, I am not so certain. To have both would be a kind of double of lock that would not exist if we just relied on Parliament in this instance. There may be other instances that are not covered by Amendment 24 that the noble Lord, Lord Norton, might want to consider. That is our position at the moment. We are slightly sceptical that the solution has yet been found.
How wonderful it is to see the noble Lord, Lord Rennard, in such fighting form on this Bill. We missed that fighting quality so much in the weeks and months that we spent on the previous Bill. Keep it up.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I think my noble friend Lord Rennard, with his spirit on the previous Bill, managed to get some concessions out of the Government. Who knows what might happen?
Before addressing the amendments that have been spoken to in this group, I shall briefly speak to Amendment 26, which is a government amendment and implements a recommendation made by the Delegated Powers and Regulatory Reform Committee. In common with the other amendments in this group, it concerns Clause 1(5), which confers a power on the Prime Minister to vary the date of a general election by up to two months earlier or later by order, subject to the affirmative procedure.
I am sure the House will be grateful to the committee for the careful scrutiny it generally gives to legislation but has specifically given to the Bill. In its report, the committee concluded that the delegated power taken in Clause 1 was not inappropriate in principle and recommended that, when seeking to vary the date of an election under the power in Clause 1(5), a Prime Minister must lay a statement before both Houses setting out the reasons for proposing the variance of the date.
The committee itself recognised that it would be unrealistic to specify a constraint which would embrace all the possible circumstances in which it would be appropriate to change the polling day. Instead, this is why the committee focused on the importance of ensuring that each House is fully aware of the reasons why the Prime Minister has proposed changing the polling day. That is an approach with which the Government agree. I am sure that your Lordships will be pleased to hear that the amendment implements the committee’s recommendation and provides that a statement must be laid before both Houses of Parliament setting out the reasons for proposing a change to the date of a scheduled general election. I certainly urge your Lordships to accept this amendment when the time comes.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 9 months ago)
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Lord Wallace of Tankerness
My Lords, I thank the noble Baroness, Lady Hayter, for this interesting amendment, which has given rise to a number of interesting questions. As the Committee well knows, a cross-party committee has been considering reform of this House and the Government intend to publish a draft Bill shortly. I could not possibly comment on what will be in that draft Bill as it will be subject to pre-legislative scrutiny. We hope that that will be done by a Joint Committee of both Houses. I am sure that some of the important issues which the noble Baroness raised will be brought before that Joint Committee. My noble friend the Leader of the House answered questions on some of the issues she raised regarding the relative standing of both Houses last week, if not the week before. However, I do not think that it is appropriate to deal with them in the context of this Bill.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Grocott, for his amendment, which would provide for a minimum of five parliamentary Sessions in every five-year Parliament. I have a lot of sympathy with the spirit of what is proposed, but I will explain why I do not think that it should be enshrined in statute. I accept that having five annual Sessions in a five-year Parliament makes considerable sense. Indeed, under this Bill is it likely that the Parliament elected in 2015 will have five Sessions. The only reason that this Parliament is likely to have four—I will deal with this in more detail in a moment—is the transition to fixed terms and spring state openings. It would not be appropriate to put the amendment into statute; the current arrangements should remain. As the noble Lord, Lord Grocott, recognised, even if the Bill did not exist, it would still be possible to change the length of a Session.
I will answer the point made by the noble and learned Lord, Lord Falconer. It was very obvious that the decision to move to spring 2012 was not taken in the early days of this Government. By the time the announcement was made in September, the Bill had already been published. I cannot remember the exact date; it must have been around the time the Bill got its Second Reading. I am being told that in fact it was the same day. That might explain why the Bill did not have pre-legislative scrutiny. I know that I have not answered this point to the satisfaction of the Opposition, who will come back to it time and time again. However, we wished to have this Bill in the first term. It was not in order to get this Bill through that we decided to extend the Session. It is very clear that the reason for the extension was that we wished to move to an annual Queen's Speech in May and therefore an adjustment was required.
We could have reduced the length of this Session, but to have done so half way through would have caused a number of difficulties. That is why it was decided, as a one-off, to extend this Session until spring 2012. There is nothing sinister in that. Most of our legislation would have been passed in any event. The noble Lord, Lord Grocott, indicated that there is provision for carry-over. I pause to reflect that the fact that this Session is longer may bring a ray of hope—with reference to the previous debate, I believe that hope was the last thing to come out of Pandora's box—to Members whose Private Members’ Bills are so often frustrated because there are not enough Fridays in the Session to get them through. To suggest that this is a sinister plot on the part of the Executive is grossly misplaced. The purpose is to get into a position where we can have annual Sessions that begin in May. It will be our intention thereafter to have Sessions that run from spring to spring.
It is not appropriate to enshrine this in statute because there may be a case where, if the Bill is enacted, an incumbent Government lost a vote of no confidence and a new Government was formed within 14 days. It is possible in such a scenario that it would be felt that the Session should come to an end and that there should be a new Queen's Speech. Nobody would think that that would be unreasonable in the circumstances. It might be very difficult then to fit in five Sessions. That is why it is better not to stipulate in statute that there should be five Sessions in any one Parliament. A Session might begin after an election in February and come to an end in May, which would not make much sense. It would have to be brought artificially to an end to ensure that the requirement of five Sessions was met.
Having annual May-to-May Sessions will ensure that the final Session of the Parliament is more likely to be much more meaningful and worth while than one which, for example, begins in late November and lasts until the wash-up in late March. The noble Baroness, Lady Armstrong, says, “We’ll see”, but nothing could be less exciting or satisfying than what we experienced in the wash-up last year when we tried to deal with so many Bills that had barely got anywhere. Parts of the Constitutional Reform and Governance Bill, which had had only a Second Reading in this House, were passed with only the briefest scrutiny. It had some pre-legislative scrutiny, but no scrutiny in this House. I hope that noble Lords would agree that at the end of the day actual legislative scrutiny is more important than pre-legislative scrutiny.
Lord Bach
It is best to have both; I quite agree. That Bill had enormous pre-legislative scrutiny, but should have had more legislative scrutiny. There, I have said it. Now perhaps the noble and learned Lord will admit that his Government, too, are in error. More importantly, they are passing legislation now, so they should learn from any mistakes that we may have made.
Lord Wallace of Tankerness
This legislation is having ample legislative scrutiny and I suspect that in times to come we will move towards having much more pre-legislative scrutiny. That is why I argue for five-year fixed terms; there will be more opportunity for pre-legislative scrutiny as well as legislative scrutiny. I simply make the point that to truncate one Session into two or three months would not be sensible. Future Sessions will last for only 12 months. What is happening in this Session is a one-off adjustment so we can get into the pattern of spring to spring Sessions that would fit the election timetable of fixed-term Parliaments with elections in May. For these reasons, I invite the noble Lord to withdraw his amendment.
Fixed-term Parliaments Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 9 months ago)
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Lord Wallace of Tankerness
My Lords, the House of Commons would determine this. As the noble Lord, Lord Richard, said, the Government might then be of a different composition, but they would come from those who have been elected to the House of Commons for a term of five years. If they cannot form a Government and no Government can command the consent to a majority in the House of Commons, there would be an election. If that could not be done within 14 years—I mean, within 14 days. [Laughter.] That is probably wishful thinking on some people’s part. If that could not be done within 14 days, there would be an election.
Clause 3 makes the key necessary changes to electoral law and the law concerning the meeting of Parliament in light of fixed days for elections. It provides that Parliament dissolves automatically 17 working days before the polling day, which has been fixed for the general election under the Bill. It means that Her Majesty the Queen will no longer be able to dissolve Parliament in exercise of the prerogative. This is a safeguard against a Prime Minister deciding that he wishes to ignore the requirements of the Bill and advising Her Majesty to exercise her power to dissolve Parliament.
Clause 4 deals with certain supplementary and consequential matters. It preserves the Queen’s power to prorogue Parliament. Subsection (2) preserves the traditional way in which the sealing of a proclamation summoning a new Parliament under the great seal of the realm is authorised, which is by Order in Council rather than by warrant under the royal sign manual.
Clause 5 sets out the short title of the Bill and the schedule contains consequential amendments to a number of Acts of Parliament. I do not intend to go through them all, but included among them is the Septennial Act 1715, which, after amendment by the Parliament Act 1911, set the current five-year term for Parliament.
The Fixed-term Parliaments Bill will be seen as a stabilising measure. It will reduce opportunities for partisan game playing. In a situation where we are so often told that the Executive are trying to gather power to themselves, under the Bill they will give power to Parliament, and it is right that they do so. I look forward to the debates that we will have in your Lordships' House. The points raised by the noble and learned Lord, Lord Morris, will undoubtedly be ones to which we can return in Committee. I look forward in the course of this debate to hearing a maiden speech from my noble friend Lord Cormack, with whom I was privileged to serve for many years in the other place.
It was quite obvious from reading the record that the Bill was the subject of some lively debates in the other place, where—I should put on record—extra time was provided for consideration in Committee.
Lord Wallace of Tankerness
It is absolutely true, the Bill was given extra time at Committee—a Committee of the Whole House. I am certain we will not all see eye to eye with the noble Lords opposite, although I recall that they supported the idea of fixed-term Parliaments in their manifesto. There is therefore some broad consensus on what this Bill seeks to do.
This Bill demonstrates the commitment of this Government in bringing forward much needed political and constitutional reform. It will go a long way to restoring trust in our political institutions and I therefore commend this Bill to the House.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Bach
I am very grateful to the noble Lord, as always—and the Electoral Commission must be even more grateful than I. These are sensible amendments that one would have thought the commission would have supported, given all that it said about the scandalous issues that arose in Sheffield and a few other places during the last election. It is remarkable that it seems to have changed its mind.
I will put that to one side. The Government will make up their mind about whether to do something about the scandal in May last year. My question to the noble and learned Lord is: what do the Government intend to do to make sure that this does not happen again in May this year?
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank the noble Lord, Lord Lipsey, for returning to this important issue in his amendment. Many of us who watched the election night coverage of the scenes at certain polling stations where people who had been queuing were not given the opportunity to vote found that it offended our sense of justice as democrats. The Government certainly take it seriously. The Electoral Commission's report found that queues built up at a number of polling stations on 6 May for various reasons. It identified 27 polling stations across the country. In most cases, it found that the common factor was inadequate planning processes and contingency arrangements that were not in place.
I assure the House that the Government are considering the Electoral Commission's report. We will consider what steps are necessary to prevent a repeat of the problems. It is important that we make sure that any changes to the rules are workable and will benefit the public. The noble Lord, Lord Lipsey, referred to the briefing from the commission to Members of your Lordships' House in which it indicates that a change to the rules on the close of polls would be significant; that details of any changes would need careful consideration to ensure that they could be consistently applied and would not have any unintended consequences; that the amendment could lead to inconsistent practice; and that there has not been sufficient time to consider the implications of how the provisions of amendment might work in practice.
We previously assured the House, in a reasonably long debate on this issue in Committee, that the Bill already gives the chief counting officer the necessary powers and discretion to ensure that the referendum runs smoothly. She will have sufficient flexibility to decide what is right in particular circumstances, including the steps that have already been taken by the Electoral Commission to ensure that some of the problems that occurred on 6 May are not repeated. This will include all counting officers having effective planning processes and contingency plans. We advised the Committee that the Electoral Commission had indicated that the chief counting officer intends to issue directions to counting officers on the maximum number of electors who will be allocated to any polling station, and the associated minimum number of staff who must be present at each polling station to ensure that polling runs smoothly and that all electors who wish to vote are able to. The Government take this seriously and are considering the Electoral Commission's report.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
My Lords, first, I thank the noble Baroness, Lady McDonagh, for her amendment. In a number of ways it brings together issues that have been debated both in Committee and this evening and, I suspect, will be debated in future groups of amendments.
On the rules of the Boundary Commission and the number of seats, as the noble Baroness indicated, her amendment has a number of parts to it. First, it would set a target of 600 seats, not to be substantially exceeded. Secondly, it would introduce a fixed electoral quota of 72,000 voters and a tolerance of 7.5 per cent on either side. Finally, it would require the Boundary Commission to draw up recommendations for boundaries that do not cross historic county boundaries or English local government wards, and cross London borough boundaries only where absolutely necessary and where sympathetic to local ties and natural boundaries. The Government have on each of these issues already made their view clear in the debates that we have already had on this Bill. I am sure that there will be other opportunities to revisit them before the Bill leaves your Lordships’ House.
I start with the noble Baroness’s suggestion that there should be a target of 600 seats. The noble Lord, Lord Bach, referred to the Parliamentary Constituencies Act 1986, in which the figure of 613 seats was set using similar wording.
Lord Wallace of Tankerness
Indeed. The figure is 613 for Great Britain, which, with Northern Ireland, takes it to 630. We are agreed on that. That, in many respects, just underlines the problem. Even with that wording, if you subtract the 18 Northern Ireland seats from the current 650, you get 632, so we are already some 19 seats up. Noble Lords might recall that when the 1986 legislation was passed, it also had the provision that there had to be at least 71 or 72 seats in Scotland, which is now down to 59, so we can perhaps add another 12 to that. Not only are we 19 up, we have a further 12, so we would have drifted upwards by some 31 from the target figure.
The noble Lord, Lord Bach, quoted the fifth report. I do not dispute that no one else has, but I do think that somewhere along the line there have been some quotations from it before, although that is neither here nor there. While he indicated that in the view of the Boundary Commission it was not right for it to set a fixed target or adhere to a fixed number, I rather think that, given the rules under which it operates in the 1986 legislation, that is probably a proper way for it to go about its business. The whole point is that Parliament is setting a figure of 600. It is not the Boundary Commission but Parliament that will set a fixed number.
The Government’s position has been made clear; there needs to be a legislative cap on the number of seats to control the ratchet effect of the current legislation, under which the number of seats has increased at every review—with the exception of the post-devolution review—since 1950. It is likely that the target would be missed under the noble Baroness’s amendment even at the first review, since the 2009 electorate divided into constituencies at an average of 72,000 would fill 631 constituencies. Indeed, she said that we would be invited to address the issue of constituencies of around 100,000, but that is wildly out of kilter with anything that is being proposed here. That is not what Parliament is being asked to address. We are looking at a quota of approximately 76,000, with a variation of 5 per cent on either side—a band of 7,600.
Setting out the size of the electoral quota in the Bill poses some problems for the way in which the noble Baroness’s amendment is framed. However, the way in which the Bill is written allows for changes in the number of registered voters while maintaining a smaller House of Commons. A specified quota, such as that proposed in this amendment, would mean that the number of seats will rise as the number of registered electors rises, making it yet more unlikely that the commissions will ever meet the target of 600 seats.
Lord Wallace of Tankerness
I hear my noble friend and, although I do not have an exact figure, a significant number of county boundaries within England are crossed by constituencies. I am not quite sure whether those counties would be defined as historic.
Lord Bach
Which other examples does the noble and learned Lord have in mind? He is quite right to mention Oldham and Saddleworth. Our point is that if this Bill is passed as it stands, there will be many more Oldham and Saddleworths. Those of us who visited that lovely part of the world a few weeks ago will know that it is a constituency of many parts that are absolutely different from each other. Do the Government really want boundaries with no links at all—never mind historic links—that are just jammed together for political convenience? The Government should want to avoid that, rather than encourage it. I ask again—does the noble and learned Lord have other examples?
Lord Wallace of Tankerness
I do not have the figures immediately to hand, although before I finish I might be able to provide the number of county boundaries that are crossed by constituencies. I accept that the number of constituencies that cross county boundaries is different. From my recollection of our previous debates on this issue, a number of county boundaries are crossed by constituencies. I hope that by the time I conclude my remarks I can advise the House as to the exact number of county boundaries that are crossed. I am sure that in each case it is thought the counties are properly historic.
Lord Wallace of Tankerness
My Lords, I thank noble Lords who have taken part in this debate, and I thank them for the amendments they have tabled. We have focused on the important issue of boundaries, particularly ward boundaries. I especially thank my noble friend Lord Tyler and the noble Lord, Lord Davies of Stamford, for acknowledging that, in response to representations they made earlier, the Government have brought forward amendments that reflect the importance of using wards in the Boundary Commission’s deliberations and determinations.
The Government have listened, and I hope that our amendments will satisfy the House. They reflect the variations in local government geography in the four constituent nations of the United Kingdom. We have taken the local government boundaries that we know each Boundary Commission considers when drawing up the constituencies and the amendment puts them on the face of the Bill. The Boundary Commissions will have the discretion to consider ward boundaries along with the other local government boundaries referred to in the debate.
The noble Lord, Lord Howarth of Newport, and the noble Baroness, Lady Armstrong, mentioned the position of the unitary authorities. In the other place, the Government listened to the matter raised by the honourable Member for Slough regarding the unique position of the unitary authorities in Berkshire, which are districts. The Government listened and made an amendment to ensure that their boundaries were included. They will still be covered by our amendment which refers to all council areas in England, whether unitary or two tier, and for that reason we believe that there is no need for the amendments of the noble Lord, Lord Howarth of Newport, although I accept the rationale behind them. The government amendment already allows the Boundary Commission to consider unitary authorities.
Amendment 21A would prevent constituencies including the whole or part of more than two counties or London boroughs. I note that the honourable Member for Dumfriesshire, Clydesdale and Tweeddale, Mr David Mundell, represents a constituency which contains parts of three council areas, including my own native parts in Dumfriesshire. It shows that Members of Parliament can perform this task. Indeed, at the last general election Mr Mundell was returned with an increased majority, which, given that he is the only Conservative MP in Scotland, was no small achievement. The administrative convenience of MPs should not be set above other factors to be considered by the Boundary Commissions.
The amendment of the noble Lord, Lord Davies, would prevent wards being split except in exceptional circumstances. The difficulty with exceptional circumstances is that in some of the largest wards of around 20,000 electors, there could well be perfectly valid arguments that it might better reflect the community characteristics for them to be divided between two different constituencies. In an earlier debate the noble Baroness, Lady McDonagh, recognised that wards are already split by parliamentary constituency boundaries in Scotland, where, because of the single transferable vote system of local elections, wards are by their very nature considerably greater.
We believe that the best approach is to give discretion to the Boundary Commissions. We should not forget that the secretary to the Boundary Commission for England said in evidence to the Commons Political and Constitutional Reform Committee in September of last year:
“We have done some modelling earlier in the year … and it appears possible to allocate the correct number of constituencies using wards. However, it may be necessary to use a geography below ward level”.
So we expect wards to continue to be used as the building blocks of constituencies in England.
I am sympathetic to the intentions of opposition Amendment 21C. However, the Government favour placing a discretion on the commissions in the form of our amendment. I hope we agree that it is helpful for the commissions to be able to have regard to the boundaries of wards and other local government boundaries, and it is for that reason that we have placed them in the Bill. I urge the noble Lord, Lord Bach, to withdraw his amendment and the other noble Lords not to move theirs. I will move Amendments 27A, 27C and 27D in good time.
Lord Bach
My Lords, I am grateful to all noble Lords who have spoken in the debate, not least to the Minister for his comments. At the start of my speech I did not thank the Government for the move that they have made on this issue, which I now acknowledge from the Front Bench. Our problem is that they have not moved far enough. My amendment and the amendment of my noble friend Lord Davies of Stamford seem to be stronger, tougher and more likely to mean that wards would not be divided in the changes to come. However, we have had a full discussion on this issue today and the Government have at least moved some way in this field. I beg leave to withdraw the amendment.
Lord Bach
My Lords, this is a very simple amendment which we feel the Government should be able to accept without any fuss. It makes a minor textual change that does no more than include in the Bill a statement of fact made by the government Front Bench. It proposes that the reference to “local ties” in rule 5 of Clause 11 should also include a reference to local wards. There should not be much argument about this because in Committee the noble and learned Lord, Lord Wallace of Tankerness, told your Lordships that,
“wards are in many cases already the building blocks of constituencies. They are the level that can often reflect local community ties”.—[Official Report, 24/1/11; col. 743.]
Today, he has gone further and the Government have moved an amendment, which has been passed, that will strengthen that to some extent. Therefore, the case for adding the expression set out in my Amendment 21J is sensible, clear and unarguable. I hope that the Minister will accept it. I beg to move.
Lord Wallace of Tankerness
My Lords, as I understand it, what the noble Lord intends is for rule 5, on factors which the Boundary Commission may take into account, to read:
“A Boundary Commission may take into account, if and to such an extent as they think fit … any local ties, including wards, that would be broken by changes in constituencies”.
The reason for our not wishing to accept the amendment is, as has already been indicated—we have already had a good debate on wards—that “wards” will be inserted in the Bill by Amendments 27A, 27C and 27D when they are passed. As the noble Lord knows, wards will in that way be imported into the Bill, so the position would in many respects be duplicated by his amendment. I do not think that there is any dispute between us as to the importance of wards, but I believe that the amendments which the Government will move when we reach the appropriate part of the Marshalled List will address the point that the noble Lord makes.
Lord Bach
My Lords, I thank the noble and learned Lord for the speed with which he found the passage. Oh, did he not? I take back those thanks at once but thank him for his response.
He is being too cautious here. This is such a small amendment and it fits in exactly with what he told the House about how important the Government now feel that wards are in the whole structure of the new process. I will of course withdraw the amendment but ask him, please, to go back and consider whether adding those words in that part of the Bill would really not be an improvement. There is no adverse reason why that should not happen. I ask him, before Third Reading, to go back and consider that but for now I beg leave to withdraw my amendment. I am grateful to the House for its indulgence.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Campbell-Savours, has moved an amendment which would change the referendum question to ask voters whether the supplementary vote system should be used instead of first past the post rather than the alternative vote system. It will come as no surprise, because it is the content of the Bill, that the Government are committed to providing for a referendum to be held on whether the alternative vote system should be introduced for elections for the other place. We had these debates on a number of occasions in Committee.
I know the noble Lord, Lord Campbell-Savours, has a degree of authorship of the supplementary system that is used in the London mayoral election. We have heard on a number of occasions his concern about the alternative vote provisions in the Bill. It is always very invidious to say how people might hypothetically have voted when that was not the system that was used. The comments made by the noble Lord and the noble Lord, Lord Foulkes, were quite legitimate points to be made in the referendum campaign, when the parties and the different participants will take their own view about the merits and demerits of the alternative vote system. I can confirm that under the provisions in the Bill, which the noble Lord, Lord Foulkes, accurately described, voters may express a preference for as few or as many candidates as they wish or, indeed, for one. As the noble Lord rightly said, that could mathematically mean that not all Members elected to the other place had secured 50 per cent. As we debated last week when we were considering the material now on the website of the Electoral Commission for discussion, which will be sent out to stimulate interest and to explain the proposition before the voters on referendum day, that point is made in the material that it will be putting out.
Clearly the noble Lord’s amendment to adopt the supplement vote system will limit voters’ choice in expressing preferences for candidates standing at the election as they would be able to express a preference for one or two candidates only. The Government are not persuaded that the AV provisions in the Bill should limit the number of preferences that any voter may express at an election. We consider that not limiting the number of preferences that a voter may express under the alternative vote will enable MPs to be elected with a broader level of support, although I make the qualification that as you can cut off and do not need to vote for everyone, it will not necessarily mean that an MP will achieve 50 per cent.
As my noble friend Lord Strathclyde explained in Committee, the Government believe that the optional preferential form of the alternative vote is the right form of AV to be put before the people. For elections to the House of Commons, voters will be able to express preferences and should be able to express as many or as few preferences as they choose. They should not have their ability to express preferences constrained in the way proposed in the noble Lord’s amendment. The optional preference form of AV avoids voters being forced to vote positively for political parties that might be distasteful to them, such as those on the extremes of politics. There is no indication in the amendment about how in detail the supplementary vote system would work. The attraction of the Bill as it stands is that for all the arguments that might take place about how AV works, the Bill sets out that process in Clause 9 and Schedule 10. Questions about how AV works can be resolved by looking at the Bill. That would not be the case with the amendment, which lacks clarity. I therefore urge the noble Lord to withdraw it.
Lord Bach
I understand that the supplementary vote system is used in mayoral elections. Indeed, on 5 May, there will be a mayoral election in what I describe as God’s own city, Leicester. It is the first mayoral election that will presumably be under the supplementary vote system. If the Government get their way on this, it will be slightly ironic that at the next general election the public will also be asked to vote on whether an alternative vote system in the manner set out in the Bill should be adopted for the United Kingdom for future general elections. Do the Government intend to do anything about the way SV is used for mayoral elections, or are they content with it for that but not for AV generally?
Lord Wallace of Tankerness
I think the noble Lord, Lord Campbell-Savours, helped to devise the system for mayoral elections that we have inherited. There are no proposals to change it. We are talking about elections to the other place. I have made it very clear that we see the merit of a system where preferences can be expressed as far or as little as individual voters wish. For the purposes of electing the House of Commons, we prefer it to the supplementary vote which by its very nature limits the extent of the preferences that the individual voter can indicate. On that basis, I ask the noble Lord to withdraw his amendment.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
As one who stood for election on I do not know how many occasions, I shall not tangle with one of the best agents that my party has ever known.
Lord Wallace of Tankerness
I shall speak also to the other amendments in this group, all of which are related. Indeed, they relate to each of the combination schedules and have been grouped to ensure that there are equivalent combination provisions across the whole of the United Kingdom.
The overall purpose is to ensure the smooth running of the provisions in Schedules 5 to 8, which relate to the provision of, access to and retention of documents at a combined poll. The amendments are technical and will make certain that the right documents are available to the right officers at the right time, and are retained by the right officers after the polls are over.
I do not intend to go into this matter in great detail, unless pressed, but noble Lords may be interested to note that the amendments provide that at the end of a combined poll there is the same obligation on the registration officer or counting officer to provide access to and supply copies of combined election documents that would have existed if the election had been taken alone. In England, Wales and Scotland, the counting officer will be provided with the necessary lists and other election documentation and information needed to carry out his or her functions in relation to the combined elections that are transferred to him or her. For example, we have specifically provided that as soon as practicable after 5 pm on the sixth day before the poll—that is, after the date for applying for a proxy vote has passed—the registration officer must provide the counting officer with the absent voting lists for any elections which are combined with the referendum in his or her voting area.
An equivalent provision is not needed for Northern Ireland because of the chief electoral officer’s role as both a returning officer for the election and counting officer for the referendum. Other provisions specifically relate to documentation in Northern Ireland, including a court order for the production of a combined corresponding number list retained by the chief electoral officer for Northern Ireland, which can be obtained where necessary in relation to a local election offence or petition, in the same way that such an order could have been obtained if the document had been retained by an officer of the relevant council.
I should also advise the Committee that the Electoral Commission, the Association of Electoral Administrators, the Northern Ireland Office, the Scotland Office and the Wales Office have confirmed that they are content with these amendments. I beg to move.
Lord Bach
My Lords, I thank the Minister for introducing his amendments. I have a simple question. Why are they being added now when I think a number of amendments were added at the latter stage in the Commons proceedings on the Bill? Was this something that was omitted or has it just been thought up? I am talking about Amendments 122F, 122H and 122K, which all refer to the same thing. I can see its importance and we do not oppose it, but why does it appear now when everything else in Schedule 5 was there at the time of the proceedings in another place?
If the noble and learned Lord does not have the answer by the time I sit down, he can write to me. This seems quite important so I am interested to know why it was not added before.
Lord Howarth of Newport
Let me provide a little more time for officials to advise the noble and learned Lord. I should be grateful if he would advise the House on the means of communication whereby these minor, technical but none the less significant changes will be communicated to those whose duty it is to carry out the relevant functions. How much complexity is there in that and will training be needed? How will the system ensure that all those who need to know about these changes being made at a late stage actually know, given the short-ish interval between enactment and the date of the referendum?
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.
I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.
Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.
I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.
It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.
Lord Bach
I thank the noble and learned Lord for his full answer and my noble friend Lord Soley for his contribution in support of my amendment. I am slightly disappointed by the noble and learned Lord’s response. As I said in opening, this is a modest proposal—and a practical one, I think. Without doubt, the Electoral Commission will come under a lot of pressure, to put it mildly, in the lead-up to and during the campaign for the referendum. No doubt, much of that criticism will be ill judged and unfair, but the Electoral Commission will have to face it.
This modest amendment is an attempt to give some cover, some protection to the Electoral Commission. The Speaker's Committee already exists. For the life of me, I cannot understand what are the dangers of extending its role to this issue. I understand that the Government do not want to adopt the amendment. I should like them to go away to think about it again because, as a practical measure to try to stop the difficulties that will undoubtedly arise in future, it seems to us to be sensible.
Of course I will withdraw the amendment today. We want to consider in more detail what the noble and learned Lord said, but I tell the Committee that we may well return to this issue at Report. I beg leave to withdraw the amendment.
Lord Bach
My Lords, in our view these are two excellent amendments, although it is rather surprising that they have been put together in the same group. What links them is their excellence, and I hope that the Minister will be encouraging to both noble Lords who tabled them. I do not fear for the health of the noble Lord, Lord Phillips, on his way home. We all know him as a brave and independent-minded Peer who has already shown, in the course of the eight or nine months of the coalition’s existence—it seems a long time already—that he can act independently. Looking at him from where I stand now, he seems to be the same man he was before he voted a few months ago against the coalition on an important amendment on a different issue, so good luck to him in his amendment. Of course, if he had been concerned, he need not be any longer because he has the protection and support of the noble and learned Lord, Lord Mackay of Clashfern, and there cannot be any better protection and support than that around the House.
The noble Lord, Lord Phillips, pointed out the ambiguity and ambivalence of paragraph 10 and the need for it to be simplified. For those on the Front Bench on this side, that is clear, and I think it is the only point I need to make about his amendment. We hope that his noble and learned friend Lord Wallace of Tankerness will take note.
My noble friend Lord Lipsey’s amendment also seems to hit the mark for us. The noble and learned Lord, Lord Mackay of Clashfern, was right to say that what happened at the end of the last general election night—thankfully in a comparatively small number of venues, although even one was one too many—was absolutely disgraceful. Indeed, if it had happened in any other country, whether it was a sophisticated democracy or a new democracy, I venture to think that it would have been reported in the British media as being proof that that country had not really grown up democratically and lacked certain vital factors in elections. We must make sure that it does not happen again, and indeed I think that that is what my noble friend is suggesting in his amendment.
The noble Lord, Lord Rennard, was quite right to say that this would only affect the referendum, but it needs to affect all elections. However, the noble Lord, Lord Rennard, is perhaps best placed of anybody in the House to use his influence to make sure that government views can be changed so that this can become general practice rather than just for the referendum.
I have nothing else to say from the Front Bench except that we hope very much that the Minister will be sympathetic to these two amendments, both of which will add to the virtue of the Bill.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, in addressing the amendment tabled by my noble friend Lord Phillips, I can assure him that he need not be concerned about proposing it.
Amendment 110ZA would impose a duty on the chief counting officer to facilitate co-operation between the officer, the Electoral Commission, the regional counting officers, counting officers and registration officers. In common with other noble Lords who have spoken in the debate, the Government agree with the intention of the amendment, which is to ensure that there is a strong relationship and good communication among those involved in running the referendum. However, we do not believe the amendment is necessary because there is nothing in the Bill which would inhibit this kind of activity from taking place.
Paragraph 10(1) of Schedule 1 states:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation in the referendum”.
That, of course, includes precisely the kind of co-operation suggested in the amendment. Moreover, I can assure my noble friend and the Committee that this kind of co-operation is already happening in practice. The chief counting officer has established a working group, which includes regional counting officers, to co-ordinate activity ahead of the planned polls; and the commission’s plans for public awareness have been shared with this group, as well as with counting officers and electoral registration officers. We are assured that material will be developed by the Electoral Commission for use by electoral administrators to support their public awareness work and to ensure appropriate co-ordination with its own activities.
On a slightly more technical point, the amendment does not sit well with the current wording and spirit of paragraph 10 of Schedule 1, where the onus is on the chief counting officer being responsible for deciding what steps she thinks are appropriate to encourage participation. It should be noted that when undertaking this responsibility the chief counting officer can also use her power of direction under paragraph 5(5) of the schedule to require regional counting officers and counting officers to take a particular course of action to encourage participation. In contrast, the amendment would mandate the chief counting officer to undertake specific steps, which is not the intention of this provision.
In addition, one effect of requiring co-operation among certain named bodies is that such a requirement could raise a question about whether it was also permissible for the chief counting officer to consult other bodies that are not mentioned there. That problem does not arise in the original drafting.
I understand the sentiments and the intention underlying my noble friend’s amendment.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
I indicated that the commission's report on performance standards for electoral registration officers in Great Britain showed that just under 96 per cent of electoral registration officers met the completeness and accuracy of the electoral registration records standard this year. So they are already measuring and, against that, they found that just under 96 per cent had made it. I do not think there is any dispute in this Committee about the importance of electoral registration. We wish to pursue pilot studies to compare the electoral register against other public databases so that we can identify people who are not currently on the register. If the trials are successful, we will roll this out nationally to ensure that registration officers are aware of what has been shown up by the trials so that they can better target people to get them on the register. There is a commitment to improve the rate of electoral registration but we cannot accept that the referendum should be postponed, possibly indefinitely, awaiting the kind of certification which this amendment proposes. Therefore, I beg the noble Lord to withdraw the amendment.
Lord Bach
I am very grateful to all noble Lords who have spoken in this short debate and particularly to the Minister for what he has said. I am not so sure about the noble Lord, Lord Newton, who made me sound like a kind of modern Herod who wants to lock up 16 to 18 year-olds who do not register. Both sides recognise that this is a serious issue and it has to be dealt with. Of course, I shall withdraw the amendment tonight but we may well bring this up again in some form on Report. I beg leave to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Bach
Obviously, I do not believe that it can. That is why I think that public inquiries, which we will come to later, are of such fundamental importance to the position.
Of course, the Boundary Commission draws up conclusions at present and then, in many cases, particularly where there is controversy, there will be public inquiries in order to see whether the original suggestion by the Boundary Commission should stand or be altered. Of course, arguments as to whether these are exceptional cases or not would be argued out both early on, I suspect among the commissioners themselves, and then also at the boundary review—that is, the public inquiry. That has proved to be incredibly successful over the past number of years and I think that the boundary commissioners, if they were standing here, would agree that this has prevented some Boundary Commission suggestions that were not very sensible coming into effect. Therefore, I agree with my noble friend’s point.
My noble friend Lord Lipsey emphasised in his amendment that he is thinking about exceptional factors. He is not advocating—nor are we, for that matter—that the factors mentioned in rule 5 should dominate in all cases, just that they should be given their due weight and that, in some areas, this weight is pretty significant. Existing rule 6, by which I mean rule 6 in the 1986 rules, says:
“A Boundary Commission may depart from the strict application of rules 4 and 5 if special geographical considerations, including in particular the size, shape and accessibility of a constituency, appear to them to render a departure desirable”.
That does not make the present rule 6 more important than size but makes it equally important. Both are considerations that the independent Boundary Commission can take into account. The difference with the way in which the Bill is drafted, of course, relates to the size of the constituency; unless the constituency is within 5 per cent, none of the considerations in the Bill’s rule 5 will come into effect.
I remind the Committee that if the flexibility in the variance in the size of constituencies were increased from the 5 per cent stated in the Bill as it stands, the problems that my noble friend set out when moving his amendment, and which his amendment seeks to avoid, would be far less likely to occur.
Lord Wallace of Tankerness
My Lords, I start by indicating to the noble Lord, Lord Lipsey, that in the days when I had to attend economics lectures from the noble Lord, Lord Eatwell, I also had to read Richard Lipsey’s Positive Economics. I hope he will take it in the spirit that it is intended when I say that I find the noble Lord’s contributions much more engaging than what I recall of his textbook.
The amendment would allow the Boundary Commission to decide, in particular instances, that the factors in rule 5 are so important that it should override the preceding rules. It has been evident from the debates that we have had so far that the core principle of this part of the Bill is to ensure that votes cast across the country have an equal weight. The best way to achieve this is to ensure that there is broad equality in the number of registered voters in each constituency. The principle of parity must be paramount.
In introducing his amendment, the noble Lord said that there was consensus in the Committee on the principle of equity, although he indicated that there was no consensus on the 5 per cent or 10 per cent variation from the electoral quota figure. I pay tribute to the noble Lord’s ingenuity for coming forward with this amendment. He claims that it is a very narrow exemption but, while ostensibly reasonable, the amendment would undermine the principle of parity that we have said ought to be paramount by allowing other factors to take precedence over the equal weighting of votes. This could, and almost certainly would, perpetuate a situation in which constituencies can be of very different sizes, and votes cast in one part of the country can have a very different weight from those cast in another.
The amendment would override rule 2(1), so it would not just be a question of a debate about a 5 per cent or 10 per cent variation. Indeed, by that rule being overridden, the variation could be sizeable indeed. Existing differences in constituency size matter. There is a 41 per cent difference between Manchester Central, with 85,522 electors in 2009, and Glasgow North, with 50,588 electors in 2009. That means that 10 voters in Glasgow North have the same weight as 17 voters in Manchester Central. Frankly, that simply cannot be right.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 10 months ago)
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Lord Wallace of Tankerness
I am grateful for that clarification. As I indicated, under the existing rules, 19 out of 32 London borough boundaries are crossed by a constituency boundary. My noble friend Lord Eccles also reflected on the fact that boundaries are crossed under the existing rules. My information is that 16 out of 35 shire counties are crossed by a constituency boundary and 31 out of 40 unitary boundaries. In its fifth report the Boundary Commission noted that in the fourth review, 13 constituencies crossed metropolitan district boundaries whereas in the review which took effect in 2010, 22 constituencies did so. And whereas in the previous review 170 constituencies had crossed non-metropolitan district boundaries, the recommendations for the fifth review included 165 which did so.
In Scotland, where I accept there are other issues with regard to wards because of the multi-Member nature of the local authority wards, there is one constituency—that of my honourable friend Mr Mundell, the Parliamentary Under-Secretary of State at the Scotland Office—which covers parts of three council areas. His constituency of Dumfriesshire, Clydesdale and Tweeddale covers the council areas of Dumfries and Galloway, Scottish Borders and South Lanarkshire. This is an important point. My noble friend Lord Naseby mentioned the fact that he had at one stage represented three local authority areas.
Lord Bach
I am sorry the noble Lord, Lord Naseby, is not in his place. I should have asked him at the time. The three he mentioned would have been two district councils and Northampton county council, which overrode both the two district councils. So it would not be three separate district councils—it would be a county council and district councils within the same county, as far as I know Northampton.
Lord Wallace of Tankerness
I defer to the noble Lord’s superior knowledge of the English local government system. In the case of Mr Mundell, it is three unitary council areas. The constituency which I used to have the privilege to represent in Shetland is one of those preserved by this Bill and it had two local authority areas within it.
I recognise the point made by the noble Lord, Lord Snape, about the relationship which individual Members of Parliament have with their local authorities. There are numerous cases where Members of Parliament represent more than one local authority area. No one is suggesting that any of those who fall into that category do not do their job on behalf of their constituents as well as those MPs who only have only one local authority within their constituency. I note in passing that Mr Mundell increased his majority at the 2010 election by 1.9 per cent. Without causing any difficulties with my coalition partners, that, for a Scottish Conservative in the 2010 election, was quite an achievement.
It is important, too, to look at this from the perspective of the elector. With regard to “one vote, one value”, the electors are only in one local government area with one Member of Parliament. We should not necessarily be looking to the administrative convenience of Members of Parliament at the expense of the value of votes for the individual elector.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 11 months ago)
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Lord Bach
My Lords, illustrating the point that I was seeking to make before I was interrupted, perhaps I may refer to a study undertaken by CACI for the Electoral Reform Society late last year. It found:
“After equalisation, the average constituency will contain about 76,000 registered voters. It will have a total voting age population … of about 83,000. But in areas of the country where registration is low, the VAP could be as high as 110,000—a third bigger than the average constituency”.
Typically, as we have heard, the areas of low voter registration tend to be poorer, urban constituencies where the MPs face a bigger and more difficult caseload than their colleagues in more affluent parts of the country. The people who make up much of that caseload often do not appear on the voter registers but they turn up in numbers in constituency surgeries—and they will continue to turn up even after this boundary review has failed to count them. They will be the invisible electorate which will inflate inner urban seats and will grow in size in line with the requirement to meet the official electoral quota, increasing still further the constituency burden that bears on the MPs who represent them.
So the Bill may be aiming at creating more equal-size seats, but it is going to shoot well wide of that mark. Our amendment will provide a small correction. Using the proposed new electoral quota of 75,800 as the starting point, our amendment would prevent the creation of seats within excess of approximately 98,500 adult residents. It will therefore provide a little more parity between constituencies and, in doing so, prevent the complete overload of MPs representing inner urban populations. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the noble Lord has explained the basis of his amendment. It sets out the requirement that Boundary Commission recommendations should comply with both an electorate and a population range. Under the amendments, the total population aged 18 or over in a constituency could not exceed a number that is 130 per cent of the electoral quota. As a preliminary point, the noble Lord, Lord Bach, has again raised the question of people missing from the electoral roll, as indicated in the report last year by the Electoral Commission. These are matters that we have already debated at some length in the course of this Committee, and I have indicated in replies to previous amendments the steps that the Government are taking to address them. However, it is worth making the point yet again that even if we were to go with what the noble Lord, Lord Bach, wishes to see, and even if we were to be hugely successful in getting people who are eligible on to the electoral roll, under what he is proposing the election for 2015, certainly as far as the English constituencies are concerned, would nevertheless be fought on constituencies that were determined by an electoral quota based on the year 2000; in other words, it would be some 15 years out of date.
In spite of the noble Lord’s sweet words of concern about the underrepresentation of certain groups, and I have no doubt whatever that he, along with all sides of the Committee, is genuinely concerned about this, so far as the 2015 election is concerned, the amendment will do absolutely nothing to reflect these people in the electorate, which will determine the boundaries. Indeed, I have already indicated that under this Bill and the Fixed-term Parliaments Bill, the election due for May 2020 would be based on the electoral register and the base date would be December 2015: in other words, after there has been some opportunity for the various initiatives that have been proposed to have effect, including individual registration.
Here I pay tribute to the work of the noble Lord, Lord Wills, and what he set in motion for individual registration, along with the rolling register, which I think was a product of the last Administration. Those were positive moves and we are planning for more. However, let us not get it into our heads that through this amendment, people who are currently missing from the electoral roll will somehow be taken into account for the constituency boundaries as far as England is concerned for elections in 2015. As I have said, we would still use constituencies where the relevant base date was as long ago as 2000.
It is accepted that the intention behind these amendments is to ensure not only that constituencies have electorates of more equal size and therefore that the weight of votes is fairer and more equal but, as the noble Lord has explained, but that the populations they contain are also fairer and more equal. I would be among the first to recognise that the responsibility of a Member of Parliament is to represent not only those who are registered in the constituency, but the entire population. Some might be eligible to register for a vote but for one reason or another have not done so, and some people might not be eligible because they are under 18 or for reasons of nationality.
There are issues of both principle and practice in dealing with these amendments. I agree with the principle that Members of Parliament must represent all their constituents, whether or not they are eligible to vote, but it does not follow that the boundaries should be designed around that principle. Constituencies are by their nature diverse, and indeed we have had numerous debates in which former Members of the other place have described their different experiences, workloads and issues that arise. We have talked about the difference between inner city and rural areas. It is inevitable that there will be these differences, but I think it would be utterly impossible to design a system that takes account of every conceivable difference. It is also worth restating the simple principle that underlines our reforms as set out in this part of the Bill. They are focused on fairness and equality for electors. What ought to be borne in mind is that we want to ensure that one elector means one vote.
The real point I want to make in relation to these amendments is that of the practical difficulties. I fear that they would be unworkable in practice. Population statistics are derived from the census, which as we know is taken once a decade. Annual estimates of change are then made from the original census data, but at present these are produced by the Office for National Statistics only at local authority level. On the other hand, the electoral register is updated annually, and whatever debate, discussion and controversy we have had over registration rates, the number of people on the register is an absolute figure and beyond dispute. It is not an estimate.
Lord Wallace of Tankerness
If I have got it wrong I shall say so, but it was not speculative, which is what the Boundary Commission is invited to do. It has indicated that if it comes up at the stage of the representations in the consultation, it might be able to talk about some hard, factual and practical changes. I shall confirm, I hope sooner rather than later, that that is possible.
Lord Bach
I continue on from what my noble friend asked. As I understand it, in the past Boundary Commissions have worked on the number registered at a particular date—that is certainly right. However, under the 1986 rules, or the way in which they have been applied, the Boundary Commission has been able to look carefully at what is proposed to be built in a certain area, such as a new town, to use an extreme example, in the relevant period. I might be wrong about that, and I look to the Minister and his advisers about that. The Boundary Commission can take that as another consideration. Of course, the commission cannot add a population as such, but it can take into account what is likely to happen in that area in a broad way.
Perhaps the noble and learned Lord will answer this when he replies to other comments that have been made, but we are concerned that if the Boundary Commission's role is so numerically based, it will really have the opportunity to look at these wider matters. At the moment, under what we consider to be rather good rules, will the commission be able to consider them in the same way as it has in the past? I do not expect an immediate answer because this is an important point about the new rules that will be created under the Bill.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 11 months ago)
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Lord Bach
My Lords, all three amendments that we have been discussing—the amendment that has been moved and the other two, Amendments 56 and 56A, which have been spoken to—are important. A great deal of important information has emerged as a consequence of the speeches made. I certainly do not intend to repeat those arguments, but I want to make a few short points.
First, all three amendments propose a delay to the submission of the reports of the first boundary review to be held under the new rules. From the Front Bench, we agree with that principle. I remind the Committee that on Monday we debated Amendment 54A, which also called for a delay—it was an important debate—but more implicitly than explicitly, as these amendments clearly do. We called for a delay in the boundary review process, first, until the electoral register is accurate and up to date. If I may say so, the compliment that my noble friend Lord Campbell-Savours paid to my noble friend Lord Wills for his work over many years in this field is well merited. It is important that the Government listen carefully to what my noble friend Lord Wills and others say about the nature of the register and how important it is to get the data right before embarking on some sort of brave new world.
It is also key that the Boundary Commission should be given sufficient time to complete the very large task that it will undoubtedly face. This argument has been made by a number of noble Lords. In evidence to the Political and Constitutional Reform Committee of the other place, the secretaries of the Boundary Commissions for England, Scotland, Wales and Northern Ireland confirmed that the timetable was achievable, but tight, and that extra resources would certainly be needed—I believe that this point, too, was spoken to on Monday. Who knows whether they are being optimistic or realistic? Obviously it is their best guess. However, by any standards, the changes envisaged in Part 2 of the Bill are substantial. Surely it must and will take time for the various Boundary Commissions to propose a new set of constituencies. Our view, which I think is common sense, is that 1 October 2013 is too tight a timetable. That is the case, simply put, and it deserves an answer from the Minister. Why does the Boundary Commission have to report by 1 October 2013? Why not make sure that it has plenty of time to produce reports that will stand the test of time?
We have heard today about public inquiries and no doubt we will have debates on the matter. From my own experience, and more importantly from that of noble Lords who have spoken today about public inquiries, I say that their value is absolutely undoubted. They may be frustrating in terms of time, but their value in making sure that parliamentary boundaries are sensible and can last has been shown time and again. We have heard this from various ex-Members of Parliament who have spoken. I speak as a non-ex-Member of Parliament who has appeared at many boundary inquiries in different parts of the country, sometimes with success and sometimes, I confess, with a substantial lack of it. However, nearly always, following the public inquiry, the decision made by the Boundary Commission, in whoever’s interest, is better than it was before the public inquiry. This issue is of fundamental importance to the Bill and we will return to it at the proper time. It is one of the most powerful parts of the argument that has been made in favour of these three amendments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Bill would require the Boundary Commission to report by October 2013. The amendment moved by the noble Lord, Lord Lipsey, would change this to October 2015. The amendment in the names of the noble Baroness, Lady McDonagh, and the noble Lord, Lord Snape, would make it October 2016, and Amendment 56A, in the name of the noble Lord, Lord Grocott, would make it October 2017. As I indicated on more than one occasion on Monday, the Government’s approach has been simple: to ensure that constituency boundaries are as up to date as possible. That point is worth repeating. The boundaries in effect in England at the general election fought last May were drawn up based on data that were 10 years old. If the House were to accept any of the amendments, the election in May 2015 would be fought on data that were 15 years old.
I mentioned on Monday, in answer to the noble Lord, Lord Wills, the 3.5 million people who are eligible to vote but who are not on the register. What I cannot fathom—and I have thought about this time and again in case I was missing something—is the point that somehow one does a service to these 3.5 million people by using electoral data from 2000. What service does that do to those who have come on to the electoral register between 2000 and December 2010?
Lord Bach
My Lords, I feel more than usually inadequate to speak in this particular debate, as I think I am the only speaker—it does not matter whether it is the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace, who responds—who, much to my regret, has never been a Member of the other place. Much of this interesting and helpful debate has been about the role of Members of the other place. Still, let me do my best.
In our amendment the other day—I cannot blame noble Lords if they have not exactly remembered every single phrase of it—we suggested from the Front Bench that the periodic boundary review should occur no later than every six years. We recognise the concerns that the current rules under which the Boundary Commission carries out its work—namely, eight to 12 years—is perhaps too long. Many argue that the extent to which boundaries have become out of date in the intervening time between the commission reporting and new boundaries applying following a general election is unsatisfactory, and we are tempted to support action to address that. The British Academy report on the Bill has concluded that,
“population movements are considerable over relatively short periods of time”.
We acknowledge that that may even happen within a five-year period. However, there has to be a balance, at the very least, between that consideration and the workability of the task that this Bill in particular is asking of the Boundary Commission. That is how we came up with the figure of not more than six years.
The arguments employed during this debate give us some cause for reflection about whether “not more than six years” is necessarily the right length of time. The powerful arguments made by the noble Lord, Lord Martin of Springburn, and others about the role of Members of Parliament raise significant and real points. I was intrigued by the answer of the noble Lord, Lord Maclennan, to the points that were made. I particularly enjoyed—I say this with the greatest affection—how he talked about boundary changes in his old constituency where, on the borders, there were Liberal, Labour and Conservative seats. I could not help thinking that he had managed to be a member of more than half of those parties, although I would never accuse him of being a Conservative.
More seriously, to have a review every seven years leaves it just a bit too long. The same applies to the other amendment in this group, which suggests eight years rather than seven. We would like—if this is possible for the Opposition—to go back and consider whether our point about six years strikes the right balance. On the Front Bench we have been rather attracted by the arguments that have been employed about how, unless the electorate decide differently, it is important that there is a certain stability for Members of Parliament, if only to encourage people from all walks of life to go for that honour.
Lord Wallace of Tankerness
My Lords, these amendments would increase the frequency of reports by the Boundary Commission from the Bill’s proposed every five years to, in the case of the amendment moved by the noble Lord, Lord Lipsey, every seven years and, in the amendment spoken to by the noble Lord, Lord Martin of Springburn, every eight years. I hear what the noble Lord, Lord Bach, had to say. He was in distinguished company, because the amendment was moved by the noble Lord, Lord Lipsey, who was not a Member of Parliament either. I am sure that that was the loss of the House of Commons.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(13 years, 11 months ago)
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Lord Wallace of Tankerness
I thank the noble Lord for that question, because he has illustrated that if he had not intervened I might have reached that point by now. I hope noble Lords will allow me to answer that important point, which was made by a number of noble Lords, including the noble Lord, Lord Howarth. I hope to respond to these points as we proceed.
The noble Lord, Lord Wills, has made an ambitious attempt to balance the effect of almost every electoral procedure against every other one. His amendment asks us to wait longer to turn the Bill from a Bill that is workable and achievable into a deeply analysed but almost impossible one that would then have to be taken forward. As I have said, our objectives are clear and we believe that they are attainable. We want one elector to have one vote throughout the United Kingdom. By contrast, the amendment promises a comprehensive overhaul of the whole system that we are considering, including the maintenance of the union and the relationship between the two Houses of Parliament that might produce a magic number of electors and the optimum constituency size.
The current rules by which the Boundary Commission carries out its work have not been considered by a committee since the 1940s. They have been changed on a number of occasions since then by the decision of Parliament through legislation. There is a clear precedent for adjusting boundary rules in the light of experience. The changes have included important elements, such as a longer period of reviews of 10 to 15 years rather than three to seven years. It was right for a Speaker’s Conference to determine the basis for boundary reviews when that happened for the first time back in the 1940s. When the Boundary Commission has asked in its reports for the rules to be made more coherent, Parliament has not asked a conference, a committee or an inquiry to consider what an independent—I stress independent—Boundary Commission has asked for. It is right for the debate to take place in Parliament. Even the 1944 Speaker’s Conference recommended that electoral equality across the constituencies of the United Kingdom should be an overriding principle. We should allow the Boundary Commission to commence that work without delay.
On Second Reading my noble friend noted the dangers of a perfectionist approach, which perhaps is the approach summed up in the amendment tabled by the noble Lord, Lord Wills, when he said:
“The Bill is not a panacea. It is not some holy grail in the scripture of political re-engagement, but it is a good start”.—[Official Report, 15/11/10; col. 594.].
Again I say to noble Lords opposite that it is a great pity they did not start the process when they were given such a long opportunity to do so. The point was made by the noble Lord, Lord Gilbert, that there is no perfection of fairness; one person’s fairness may be seen as another’s unfairness. I believe that the Bill, by establishing one vote of equal value across the country, goes a long way to getting a better perception and reality of fairness. I would add that the British Academy report found that the new rules set out in the Bill,
“are a very substantial improvement on those currently implemented”,
and that,
“they have a clear hierarchy and are not contradictory”.
A number of noble Lords, including the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, asked how the figure of 600 was reached. We have never suggested that there was anything magical or ideal about a House of Commons of 600 any more than the current size of 650 is ideal. It is flawed legislation that has allowed the size of the House of Commons to creep up over time.
Lord Bach
The noble and learned Lord says that in the past Parliament has directed certain matters regarding the redistribution of boundaries, and he is right about that, but does he agree that no Parliament has ever set an exact number, such as the 600 in this Bill? No Government have ever done that. In the 1986 legislation and other previous legislation, Governments have left the Boundary Commission to set the exact number as a result of its inquiry. This Government in this Bill are trying to set a number of 600. That is unique, is it not?
Lord Wallace of Tankerness
Indeed, but the point I was about to make about the present size of the House of Commons is that it is the largest directly elected national chamber in the European Union, and at 600 it would still be relatively big. It would have fewer than the chambers of some comparable countries. The Bundestag, for example, has 622 members and the Italian Chamber of Deputies has a similar number. As indicated in an exchange between the noble Lords, Lord Foulkes and Lord Wills, each country has its own internal arrangements, be it some federal situation as in Germany or the United States, or devolution in our own country.
Lord Bach
The noble and learned Lord said that the numbers have gone up. I am sure that he knows that the number of Members of Parliament who were elected in 1945 was 640, with a population, as my noble friend just said, of 33 million. The number elected in 2010 was 650, with a population that is much higher than that. Will the noble and learned Lord admit that those figures are correct?
Lord Wallace of Tankerness
I have no reason to doubt the noble Lord, Lord Bach, but will he accept that, with the exception of the reduction of Scottish Members post the 1945 election, the numbers have gone up on every occasion?
Parliamentary Voting System and Constituencies Bill
Debate between Lord Wallace of Tankerness and Lord Bach(14 years ago)
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Lord Wallace of Tankerness
I am sure that they are very similar to the criteria which the previous Labour Government adopted when they gave Orkney and Shetland separate seats in the Scottish Parliament, and did so for similar reasons. His having been a member of that Government, I am sure that the noble Lord will be well aware of those criteria. However, I have no doubt that we will come back to this.
I shall conclude where we came in by indicating that Amendments 45 and 46A would separate the two issues. The first amendment moved by the noble Lord would do this by removing the stipulation that the alternative vote provisions are brought in only after the draft Order in Council is laid, and the second amendment would do this by removing the provision that requires the alternative vote provisions to be brought into force on the same day. It does not actually break the linkage as it would leave the requirement that the order bringing the boundaries provisions into force must have been laid first, although that would not necessarily be on the same day. It may be the intention of the noble Lord, Lord Bach, to put the amendments together.
Lord Wallace of Tankerness
I have indicated that the coalition programme for government makes a clear commitment to both issues, and it is the Government’s view that the issues are linked, particularly in terms of how the House of Commons will be shaped when it is reconstituted after the election in 2015. As my noble friend Lord McNally has said on many occasions, the linkage is fair votes and fair boundaries. The Government are committed to both provisions if a yes vote is carried in the referendum. The Government therefore wish to see both provisions, if the yes vote is carried, to come into effect in time for the next general election. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Wallace of Tankerness
My Lords, I hesitate to say because, although I am only seven or eight months into office, one of the cardinal rules for a law officer is not to expose what your advice to the Government is. Indeed, you do not even disclose whether advice has been given. However, I will reflect on what the noble Lord, Lord Soley, has said and not necessarily answer his question about advice but perhaps revisit the advice that was given to the House by the Clerks when the particular issue of hybridity was looked at.
Lord Bach
On another subject, which I asked the noble Lord about in my contribution, does he agree that even if, by way of exaggeration as an example, 99 per cent of the population were to vote in favour of changing the Westminster voting system to this type of AV, that change would not come about if the boundary changes were not made? How can he seek to justify that?
Lord Wallace of Tankerness
I will not justify that particular point, but I will draw the noble Lord’s attention to the fact that the Boundary Commission report is due, as I have already said on two or three occasions during these exchanges, on 1 October 2013. There will be time to debate the fixed-term Parliament Bill, but the assumption is that the next general election will be held on the first Thursday in May 2015. Therefore there will be ample time for both orders to be laid and implemented together, assuming of course that there is a yes vote. If it is a no vote, no time is attached to bringing forward an order to repeal the relevant sections of the Bill, or the Act as it will be by then.
I reiterate that if the Boundary Commission report is brought forward by 1 October 2013, there will be ample time. Obviously this is also important for electoral administrators and the political parties, and it would ensure that the next general election would be fought both within the boundaries that would then be implemented by order and under the alternative vote system.
Lord Wallace of Tankerness
Ninety-nine per cent of the people voting for AV, much as I would like to see that, is hypothetical. It is also purely hypothetical that the boundary changes will not go ahead either.
Terrorist Asset-Freezing etc. Bill [HL]
Debate between Lord Wallace of Tankerness and Lord Bach(14 years, 1 month ago)
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Lord Bach
Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,
“such order as it considers appropriate”,
includes damages. If the answer to that question is yes, can there be any reason not to put that in the Bill in express terms, for the reasons stated by the noble Lord, Lord Pannick?
Lord Wallace of Tankerness
My Lords, in responding to an amendment moved by the noble Lord, Lord Pannick, I feel somewhat guilty as I do not feel able to go so far as my noble friend Lord Sassoon in offering concessions. However, I welcome the noble Lord’s amendments as they have given us the chance to have a very useful discussion. Notwithstanding the points that have been made about the adequacy or inadequacy of Pepper v Hart statements in providing clarity, I hope that the noble Lord, Lord Pannick, will feel that sufficient clarity is provided.
This amendment relates to the debate that we had in Committee about the avenues available to a person who has suffered loss as a consequence of an asset freeze to obtain compensation. During that debate, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Davidson of Glen Clova, and my noble friend Lady Noakes were particularly keen for the Government to indicate their position on this point, and I shall try to do so.
The amendment of the noble Lord, Lord Pannick, would provide that the court can, in relation to appeals by designated persons against designation-related decisions, award damages if and to the extent that the court thinks it just and appropriate to do so. The noble Lord has tabled the amendment following our discussion on the scope of the orders available to be made by the court under Clause 26(3). In that discussion I drew the Committee’s attention to that provision and indicated that,
“it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant”.—[Official Report, 6/10/10; col. 193.]
I was not suggesting—as my noble friend queried; and I am grateful for the opportunity to set the record straight—that it would be open to the court to award damages,
“simply for the invalid nature of the designation”.
As the noble Lord rightly observed then, and repeated tonight, that would be contrary to,
“the general principle of … administrative law … that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action”.—[Official Report, 6/10/10; col. 194.]
It is not the Government’s intention to overturn that principle. However, it is the case that a designated person appealing a designation-related decision under Clause 26 can in certain circumstances make a damages claim in connection with that appeal. I apologise to your Lordships’ House if I did not make that distinction clear.
To clarify the effect of Clause 26(3), the orders that a court may consider appropriate in connection with an appeal of a designation could include, for example, an order to revoke the designation, or the renewal of it, or an order to uphold the designation. It would be open to a designated person to include in these, or subsequent, proceedings claims for damages under the Human Rights Act, as I believe my noble friend Lord Lester indicated, such as breach of the person’s right to enjoyment of property under Article 1 of Protocol 1 as a consequence of being invalidly designated, or—as I indicated in relation to the previous amendment— breach of Article 8, the right to respect for private and family life.
There have been relatively few legal challenges to designations, but where such challenges have been made a number of them have either included Human Rights Act damages claims or have given rise to separate Human Rights Act damages claims. Those claims which are being pursued are at a very early stage and as yet there has been no judicial determination of any of them. It may also be possible—although I appreciate that this would be more difficult—to found claims in tort or delict.
My noble friend Lady Noakes raised in Committee concerns about persons other than the designated person suffering loss as a result of a designation. Nothing in this Bill is intended to change the existing grounds—whether as a matter of the law of tort or delict or under the Human Rights Act—on which anyone affected by an asset freeze, whether the designated person, such person’s spouse or other family member, or any other third party, can claim damages against the Treasury if they believe that they have suffered loss as a consequence of an unlawful asset freeze.
In relation to loss suffered by both designated persons and persons other than designated persons, I should like to make one further crucial point. The purpose of the asset-freezing regime is to prevent the diversion of funds and economic resources for terrorist activity. It is the Treasury’s policy as far as is possible and consistent with that aim to license the use of funds and economic resources. The licensing regime successfully mitigates the impact on designated persons, their families and other third parties of an asset freeze. The general presumption is that a licence will be granted unless there is a risk that the transaction carries a risk of funds being used or diverted for terrorist purposes. Where third parties are affected, the power to grant a licence is exercised so as to ensure that, so far as is possible, no loss is suffered by any third party. For example, where payments to a family member or other third party would be prohibited because the designated person would thereby receive a significant financial benefit—for example, the discharge of a debt owed by the designated person—the Treasury can license such payments. Similarly, payments by a designated person to a third party in respect of, for example, contractual debts owed by the designated person to that third party are capable of being licensed.
I have heard the request that it would be useful to put something in the Bill. My concern is that although that might to some extent allow the individual to look at it and not necessarily contact a lawyer—however, I rather suspect that in many cases a lawyer will be quickly contacted—it might not cover the ingenuity of lawyers. If you put something in the Bill, it might seem to be limiting whereas lawyers might use their ingenuity to come up with other grounds under the Human Rights Act under which a claim could be made in the context of appeal proceedings or other proceedings. I shall certainly reflect on what has been said but I—
Lord Bach
My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.
I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security—it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he sums up the debate. What are the differences between the two regimes, especially in relation to the special advocate system?
I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.
Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.
Lord Wallace of Tankerness
My Lords, as the noble Lord, Lord Bach, indicated, this has been a short but fundamentally important debate. As he also indicated, it focuses on the challenge and dilemma of balancing the interests of liberty and those of security. I know that the noble Lord, having relatively recently been in government, had to do that himself. These are not easy issues to determine. It is important to recognise, too, that they are issues with which the Government constantly wrestle. It is fair to say that in its preliminary report—I welcome the fact that we have that report to help us today—the Joint Committee on Human Rights acknowledged the amendments that were moved in Committee and welcomed the Government’s willingness to consider the human rights issues raised during the debate at Second Reading and their amendments to the Bill, which are designed to improve the balance between national security and human rights in the asset-freezing regime. This is an issue of which Ministers are acutely conscious as they constantly try to ensure that the balance is correct.
Amendment 23, moved by the noble Lord, Lord Pannick, seeks to create a new subsection within Section 67 of the Counter-Terrorism Act 2008 that would apply to the content of the court rules about disclosure in financial restrictions proceedings and to court rules made in relation to challenges to decisions under the Bill. The amendment would require the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give instructions to the special advocate. As has been reflected in some contributions to the debate, the form of words is based on the European Court of Human Rights judgment in A, which was applied by your Lordships’ Judicial Committee in AF and Others to the stringent control orders that it was considering. The effect of the amendment is to apply AF (No. 3) to challenges to final designations.
As was foreshadowed in the letter of my noble friend Lord Sassoon to the committee, the Government do not support this amendment, and I shall explain why. I start by stressing a fundamental point on which I know there is common ground all round the House. Designated persons must have the full protections afforded to them under Article 6 of the European Convention on Human Rights; namely, the right to a fair hearing.
Section 67(6) of the Counter-Terrorism Act 2008, which is imported into the regime for dealing with asset freezing, is absolutely clear that nothing in that section, or in rules of court made under it—they include provisions relating to the Treasury’s disclosure of information only to the court and a special advocate—requires the court to act in a way that is inconsistent with Article 6 of the ECHR. It is important to emphasise that the judge also has an important role to play in challenging the closed material and in weighing the impact that non-disclosure has on the fairness of the proceedings. The court determines whether material should be withheld, and the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest is disclosed.
The Government and the legislation are absolutely clear that Article 6 rights apply in full to asset freezing. Therefore, it would be inaccurate to say—and I do not think that this was suggested—that advocates of the amendment support Article 6 rights while the Government do not. To make it clear, not only do the Government support Article 6 rights but those rights are there in the Bill by reference to the Counter-Terrorism Act 2008.
I hope that there is broad agreement that the legal position regarding the application of AF (No. 3) principles to asset freezing has not been fully determined by the courts. That is probably a matter of fact but it is clear that different views are being expressed in the House this evening regarding the applicability of the decision in AF (No. 3) to asset-freezing designations. Of course, the courts have determined—indeed, it was determined in the case itself—that AF (No. 3) principles apply to stringent control orders and to financial restrictions proceedings under the Counter-Terrorism Act 2008. That was the subject matter of the case to which the noble Lord, Lord Pannick, referred. However, the courts have not yet determined that AF (No. 3) principles apply to asset-freezing cases. The Government’s view is that it would certainly be wrong to say that legally there is no room for doubt on this.
I shall now seek to address the points that the noble Lord, Lord Pannick, made in moving the amendment. When the Bill was discussed in Committee, I indicated that in the Government’s view the principles do not apply to asset freezing because, although I do not in any way wish to minimise their significance or importance, asset freezes do not have the same impact on individuals as stringent control orders, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008. Perhaps I can assist the noble Lord, Lord Bach, who asked me to identify some of the distinctions. Asset freezes are not of the same nature or magnitude of interference, because they restrict the rights to property and indeed can be modified or alleviated by licences, whereas control orders restrict people’s liberty, communications and movement. As I said, I do not in any way diminish the seriousness of asset-freezing designations but, in our argument, their impact is not of the same magnitude as that of stringent control orders. However, it is open to the courts to determine whether the Government’s position is to be challenged.
It is certainly possible to draw a distinction in the case of Kadi, which was determined by the European Court of Justice. That judgment concerned the process followed by the European Commission in listing Kadi, and the Government would certainly argue that it had no direct bearing on the process to be followed by the United Kingdom Government in applying asset freezes domestically against persons believed to be involved in terrorism. We believe that the European Court of Justice judgment in Kadi is separate from the question of whether AF (No. 3) principles should apply to asset freezes. Likewise, in the Bank Mellat case, which was determined in May this year, the court’s rulings on disclosure were specific to the cases concerned and there was no general ruling on whether AF (No. 3) should apply in asset-freezing cases. The court ruled that the application of AF (No. 3) applied in the context of financial restrictions imposed against the Iranian bank, but the circumstances of such financial restrictions, where the Treasury issued a direction that the UK financial sector must cease dealings with the bank, were very different from those where an individual is subject to an asset freeze because of his alleged involvement in terrorism. Therefore, I do not think that a direct read-across of the court’s ruling is right, applying the specific circumstances under consideration to the freezing of terrorist assets, where different considerations may well apply.