Children and Families Bill

Debate between Lord Mackay of Clashfern and Lord McNally

Wednesday 16th October 2013 Grand Committee

[Lord Mackay of Clashfern]

If that is addressed to me, the answer is certainly yes. I have a distinct recollection of a case in which the mother left the family at a very early stage and the father and his mother had to look after the child. After a while, the child’s mother decided to come back. She had had a relationship which soured after a year or two and she thought that she would come back. You have to take account of the existing situation and the paramountcy of the welfare of the child, which may alter over time and need to be reviewed from time to time. There is plenty of machinery to do that, although, as my noble and learned friend Lady Butler-Sloss said, one’s time may be consumed by other things. However, so long as you can get a review, that can be dealt with.

[Lord McNally]

My Lords, this has been an extremely important and high-quality debate. I am not a lawyer but I have spent three and a half years at the MoJ. Therefore, when the noble and learned Baroness, Lady Butler-Sloss, said that she had the greatest possible respect for my opinion, I am aware that the term “greatest possible respect” is reserved for the most insulting comment that a lawyer is about to deliver to an opponent.

I was interested in the joust between the noble Baroness, Lady Meacher, and the noble and learned Lord, Lord Mackay. When I was first given this ministerial responsibility, I had speaking engagements in Birmingham and Putney that arose within a few days of each other. I experienced some of the doubts that have been expressed in today’s debate about the road we were going down. What interested me was that at both meetings two social workers in the audience said quite unprompted exactly the same thing to me. They said, “Don’t underestimate the willingness of women to use their children in these battles”. The noble Baroness, Lady Meacher, pointed out that in the 25 years since the original legislation was passed there has been a change in what she described as family dynamics. We are trying to deal with the situation and get the wording right.

Even in this debate there are things that take us down cul-de-sacs. We are not following the Australian model; in fact we have learnt from it. Our proposal does not require the court to balance these two factors—I will come back to this. There is no idea of 50/50 parenting. One of the problems when this was debated down at the other end was that the press coverage was very much in terms of this being a major step change. I welcome the approach of the noble Baroness, Lady Hughes, in her opening remarks. The paramountcy of the welfare of the child is still there in this legislation.

The noble and learned Baroness, Lady Butler-Sloss, from her vast experience, claims that the way it is worded produces a contradiction. Let me try to explain our approach to see whether we can convince her, but I suspect that we will be coming back to this issue on Report. It is not possible for the presumption to clash with the paramountcy principle. The paramountcy principle is not a rebuttable presumption. The child’s welfare must be the court’s paramount consideration. If the court does not believe that the child’s welfare is served by the involvement of a parent, it will not order any such involvement, and the clause does not require it to do so. We are not saying that the court must make an order that involves both parents, nor are we seeking to define the nature of the involvement which the court may order. We are certainly not making any assumption about how the child’s time may be divided. That is not what the clause is about.

The Explanatory Notes set out clearly how the clause operates. We have included a process chart as well as an example situation to demonstrate how we would expect the presumption to work in practice. In addition, I have provided further information on the clause, which sets out in detail how the clause will work in practice, and it addresses the concerns that have been raised. We will also ensure that clear and accessible information is available for parents about the range of changes we are making. This will help to address wider concerns about the risk that the clause may be misunderstood. We have deliberately avoided defining the nature of involvement, which the court may order. The presumption stands if any form of involvement can take place without risk of harm to the child and would further the child’s welfare. We have used the word “involvement” as the simplest, most neutral approach to express the full spectrum of ways in which a child can have a relationship with a parent. We believe that the introduction of a presumption in legislation is the best and clearest way to ensure that children are able to benefit from the involvement of both parents following family separation.

This clause is part of the consistent messaging that will be conveyed throughout the dispute resolution process about the valuable role that both parents can play in their child’s life, whether they are together or apart. The deliberate reference to a presumption sends a strong signal to both parents and others as to how the court makes its decision. It makes clear that it is the norm rather than the exception for both parents to be involved in the child’s life. On the points raised, I think that I have already referred to the point made by the noble Baroness, Lady Hughes, about whether it was 50/50. The wording in the clause does not suggest or imply in any way equal or substantial shared time. The Explanatory Notes make it clear that this is not the expectation.

As regards the central argument put by the noble and learned Baroness, Lady Butler-Sloss, which I suspect we will continue to discuss on Report, we believe that there are no conflicting presumptions. The parental involvement presumption will always be rebutted in a situation in which the child’s welfare requires it, and the paramountcy principle is not rebuttable.

Crime and Courts Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Monday 25th March 2013 Lords Chamber

[Lord Mackay of Clashfern]

Before my noble friend sits down, I have one question. He will remember vividly that the noble Lord, Lord Puttnam, moved an amendment to the Defamation Bill on Report, which this House carried. My noble friend anticipated at Third Reading that that would be dealt with in due course by an agreement that would supersede the amendment. The passage of time has fulfilled his prophecy, and I am sure we are all glad of that. I am assuming that now the Defamation Bill will be able to proceed, as it merits, to Royal Assent by the end of the present Session.

[Lord McNally]

Noble Lords cannot imagine the tingle in my shoulder blades when I realised that the noble and learned Lord, Lord Mackay, had risen to his feet. I thought, “My God! What question of law is he going to ask me to pronounce on?”. I am very pleased to understand that there is all-party agreement and that after the due process of whatever they do down the other end the Defamation Bill will be returned without the Puttnam amendment, although when the history of this saga is written, it will be said that the Puttnam amendment did its job. I am not so bitter about it, especially since the Bill is coming back without it.

Legal Services Commission

Debate between Lord Mackay of Clashfern and Lord McNally

Tuesday 29th January 2013 Lords Chamber

[Lord McNally]

The CAB at the Royal Courts of Justice is able to apply for legal aid contracts in the normal way for the part of its work that is directly legal aid work. As regards broader CAB work, the Government have carried out a number of initiatives to provide funding while voluntary organisations make the transition to a much more difficult economic climate. I very much appreciate the record and work of the Royal Courts of Justice CAB in providing legal advice to individuals. However, I can only say to the House—as I have done frequently as we have gone through this exercise—that we are concentrating our resources on the sharp-end providers and will continue to do so.

[Lord Mackay of Clashfern]

My Lords, does my noble friend know of any organisation that provides legal advice more cost-effectively than these bodies do? Has the Legal Services Commission worked out what the effect would be in respect of their former clients if the funding were withdrawn from them?

[Lord McNally]

My Lords, again, I emphasise that the RCJ CAB was able to apply to the Advice Services Transition Fund and this has helped it to continue. How many times can I say this? I look at a budget each day and I see that hard decisions have to be made. Hard decisions are being made by charities and we have tried to give them help in the transition. Quite simply, the days when large amounts of government funds were available for these bodies are over and we all have to face that fact.

Crime and Courts Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Tuesday 4th December 2012 Lords Chamber

[Lord McNally]

No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

[Lord Mackay of Clashfern]

For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?

[Lord McNally]

My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.

Justice: Legal Advice

Debate between Lord Mackay of Clashfern and Lord McNally

Tuesday 27th November 2012 Lords Chamber

[Lord McNally]

I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.

[Lord Mackay of Clashfern]

My Lords, can the Minister say what is the outcome of the discussions that were being held in relation to legal advice centres—not only advice but legal advice centres, of which there is a network—as a valuable way of giving legal advice economically?

[Lord McNally]

We continue to support the concept of legal advice centres, but they too have had to make some tough decisions in these circumstances. I hope that we can retain a good network, but we have had to make tough decisions in this area.

Child Abuse: Waterhouse Inquiry

Debate between Lord Mackay of Clashfern and Lord McNally

Wednesday 14th November 2012 Lords Chamber

[Lord McNally]

My Lords, I sincerely hope that that well known twitterer on the Front Bench opposite has not put my name on to this. I can understand where the noble and learned Lord is coming from. When we ask a senior judge to carry out an inquiry and they do so with the thoroughness with which the Waterhouse inquiry was carried out, there is a certain duty to respect the integrity of that work. I hope that the noble and learned Lord will also accept that the situation that we faced was not just that of a single individual coming forward but of a large amount of accusations being bandied around and a great deal of public concern. The Macur review terms of reference have been more widely drawn. Mrs Justice Macur will look at whether any specific allegations of child abuse within the terms of reference of the Waterhouse inquiry were not investigated. Quite frankly, the strength of public feeling justifies us going through with the Macur review.

[Lord Mackay of Clashfern]

My Lords, what was the basis for concluding that there was any question of whether the Waterhouse inquiry did its job properly when this announcement was made? I knew Sir Ronald Waterhouse as a very distinguished and conscientious judge. I was in touch with him when he was doing this inquiry, and I know the terrific effect it had on him, from the harrowing nature of his work in that connection. I feel very strongly that it is utterly wrong to cast aspersions on that work unless there is some basis for doing so which one can rely upon.

[Lord McNally]

My Lords, that statement, coming from such a source, reinforces what I said. When we have asked a distinguished judge to carry out an inquiry, we have to be extremely careful as to whether they can be second guessed. I do not think that anything that the Prime Minister or the Government are doing calls into question the integrity of the Waterhouse inquiry. As we always are when distinguished judges take on these difficult tasks, we are in his debt for doing so. However, the review of the Waterhouse inquiry will look at whether any specific allegations of child abuse were not investigated. The serious allegations that have been made merit a further thorough investigation.

Legal Aid

Debate between Lord Mackay of Clashfern and Lord McNally

Tuesday 31st January 2012 Lords Chamber

[Lord McNally]

My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.

[Lord Mackay of Clashfern]

My Lords, does my noble friend agree that the law centres are probably the most efficient and economical way of providing advice for those who are not particularly well off but who really need advice?

Human Rights Act 1998

Debate between Lord Mackay of Clashfern and Lord McNally

Wednesday 12th October 2011 Lords Chamber

[Lord McNally]

I think that those are rather strong words. I have said before that in a democracy where there is a separation of powers there can be a healthy relationship between parliamentarians and the judiciary, whereby parliamentarians can sometimes express concerns about how the judiciary has interpreted some of Parliament’s Acts and, likewise, the judiciary may occasionally pass an unkindly word about the behaviour of parliamentarians. As long as that is kept on a basis of mutual respect and due courtesy, it is a healthy way for a democracy to go.

[Lord Mackay of Clashfern]

Does my noble friend agree that it would be wise for all of us to be careful how we speak?

[Lord McNally]

My Lords, that is a piece of advice that I hope echoes and re-echoes down the Corridor.

Public Bodies Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Monday 28th March 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, in view of what has been said, perhaps I may take this opportunity to indicate that this amendment is eminently supportable and that I hope the Minister will respond positively to it. I felt that I did not want to make two speeches; I thought that I had made one already. Anyway, that is my position.

[Lord McNally]

My Lords, that convinces me only that the noble and learned Lord, Lord Mackay, can resist anything except temptation.

The noble Baroness gave some reasons why the Government should give themselves time to think on these matters. She pointed out that this is only enabling legislation, but, as I said in the previous debate, it is better that we have some clarity in what we wish to do. We are aware that the proposed changes to legal aid will put pressure on parts of this sector of justice, and that is why a concerted effort has to be made to drive up the quality of original decision-making. It is the departments and public bodies that make the original decisions that have the primary responsibility to ensure the quality of decision-making. However, this work with the decision-makers will continue, so as to improve getting it right first time. To drive up standards, we will seek to spread lessons learnt among relevant decision-making bodies.

The noble Lord, Lord Borrie, gave the game away when he said that the amendment and the consequential amendments were a perfectly legitimate and ingenious way of asking the House to reconsider a decision it had already made in Committee. However, the department has never hidden the fact that one of the reasons for the decision was saving money. However, as in the recent debates, almost throughout the Bill, opponents to what the Government propose seem to put enormous emphasis on the benefits that arm’s-length bodies can deliver and give no credit at all to the fact that one of the beauties of our system was that one check and balance on the delivery of policy was the direct line of responsibility running from Ministers in their departments through to the Floors of both Houses. We do not accept the idea that all these things have to be done by arm’s-length bodies, nor do I accept that the Ministry of Justice knows nothing and cares less about the wider issues of administrative justice. It is unfair to keep on throwing these attacks on civil servants who, in my experience, show an extraordinary commitment in their areas of expertise and are extremely willing to speak truth to power.

Pensions Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Tuesday 15th March 2011 Grand Committee

[Lord McNally]

I apologise if I am wrong on this, and I will write to the noble Baroness, but I believe that the 15 per cent right will be retained and judges will be able to make voluntary contributions, as they do now. I should have asked the noble and learned Lord to withdraw his amendment, even if he intends to return to the fray on Report.

[Lord Mackay of Clashfern]

My Lords, I need not make a premature decision on that. I will certainly withdraw the amendment, but I will say one or two things about the speeches that we heard. I am grateful to all noble Lords who contributed. It was good to have the support of the noble Lord, Lord McAvoy, who shares something of my accent, though possibly not everything.

My only point at Second Reading concerned the terms of service. The noble Lord, Lord Stoneham, must have been thinking of somebody else when he said that at Second Reading I referred to the quality of the judiciary. I do not think that I did. At Second Reading, I made the point that when I introduced the 1992 Bill that became the 1993 Act, I faced a terrific barrage concerning the effect this would have on the judiciary of the future. Fortunately, Parliament as a whole decided that the gloomy forecast was not correct. I think that I am right in saying that nobody, looking back, would say now that it was correct. The quality of the judiciary has remained very high. However, I did not make the point about the quality of the judiciary: other noble Lords did. I restricted myself to saying that, in accordance with our understanding of the constitution, the terms of service of a serving judge cannot be altered adversely during his term of service.

The noble Lord, Lord Stoneham, referred to contracts being changed with changing circumstances. Of course, most employees are in a situation where their contract has a definite time. The contract will run for that time and, unless there is agreement, it will be very difficult to change it. Judges' terms of service are until retirement because of the security of tenure that the Act of Settlement gave them. There is no question in my mind that we have thought for many years now that the terms of service of judges needed to be set out in statute. In 1993, we set out new terms that applied only to new judges: that is to say, judges appointed after the Act came into effect.

The noble Lord, Lord McNally, said that the 1995 regulations applied to everybody without exception. With the greatest respect, that is not correct. The 1995 regulations applied only to the arrangements under the 1995 Act, which applied only to those appointed after the Act came into effect. The main regulations came into effect on the same day as the Act. Therefore, the regulations were in place when the Act came into effect. Judges who were serving before 31 March of whatever year it was—I think it was 1995—were not subject to the arrangements. They had the opportunity of opting in to the 1993 Act arrangements, but were not obliged to do so, and a number of serving judges still have a retirement age that is different from that laid down in the 1993 Act.

The noble and learned Lord, Lord Falconer, said that he had an interest in this matter which he should declare. I made it absolutely clear—I thought that I had done so originally, but perhaps I did not do so today—that I was the Lord Chancellor for a while, including at the time the 1993 Act came into force, as well as when it was being brought through Parliament. I was also a judge in the Supreme Court in Scotland and a Lord of Appeal in Ordinary. But so far as I know, I have no financial interest in this whatever, and I am certainly not a spokesman for the judiciary—not at all. The judiciary must speak for themselves, though they cannot speak for themselves in this House any longer as serving judges are not allowed to speak here. Therefore, they will have to speak to the Minister for themselves, and I have no doubt that they will have an opportunity to do that. I am not privy to the sort of consultations they may have, although I have heard a little about it. I will have to leave being a spokesman for the judiciary to others; it is certainly nothing to do with me.

I appreciate the difficulty we are in in the present situation. I can see that everyone is required to make sacrifices. Of course, that is something that one can do under the tax regime. I am not confident enough to suggest how this could be done, but I feel certain that the tax regime is pretty flexible in getting money out of people. So there is no question that tax could be used; it does not infringe the terms of service of the individual. When there was a general reduction in the salary of public servants in the Republic of Ireland, the judiciary was expressly excluded for the reason that the constitution had that arrangement in it. I agree that longevity is an important part of the value of a pension but the terms of service here are perfectly clear, as set out in the 1993 Act. My point is that this is a breach of the general understanding of our constitutional arrangement that a judge’s terms of service should not be altered adversely during his period of service. Of course, I shall withdraw the amendment. Whether I return to it may depend on a variety of circumstances which I am not in a position to control at the moment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Mackay of Clashfern and Lord McNally

Wednesday 15th December 2010 Lords Chamber

[Lord McNally]

I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us.

[Lord Mackay of Clashfern]

My Lords, it is worth noting that the clause referred to by the noble and learned Lord, Lord Falconer of Thoroton, is from the general statute dealing with referendums. This is not a question for just this referendum; it may be a question of whether what has already been put into the general procedure is sufficiently accurate. I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Mackay of Clashfern and Lord McNally

Monday 13th December 2010 Lords Chamber

[Lord McNally]

I suspect that my noble friend is right.

[Lord Mackay of Clashfern]

My Lords, is it correct that the Bill proceeds on the basis that those that have a franchise in general elections would have a franchise under the referendum Bill, and that if the legislation covering general elections is altered in the mean time, this would apply automatically to the referendum if it comes after that amendment has taken place?

[Lord McNally]

I suspect that there is indisputable logic in what my noble and learned friend says.