European Union Referendum Bill
Lord Higgins Excerpts(8 years, 5 months ago)
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Baroness Morgan of Ely (Lab)
My Lords, I rise to move Motion A1. I start by thanking the noble Baroness the Minister and the noble Lord the Minister for their co-operation on this Bill. The Government have been in listening mode and have understood that the vote on whether we leave or remain a part of the EU is one of the greatest political questions that will be put to this country this century. Ensuring that there is a valid and fair vote and ensuring that the public have the knowledge that they need to make an informed choice were some of the key criteria that we were trying to attain during the debate. We are grateful that the Government have responded.
We now have one final hurdle over which we are at odds with the Government. This House voted overwhelmingly in favour of ensuring that 16 and 17 year-olds were given a voice and a vote in the forthcoming EU referendum. Many were convinced that it did not make sense to continue with the inconsistency that now exists across the United Kingdom on when young people should be allowed to participate in the political process. Others were persuaded that the enthusiasm and intelligence that were demonstrated by 16 and 17 year-olds during the Scottish referendum debate were an example to others and would be replicated throughout the United Kingdom. Many were satisfied that the factual-based evidence from Austria and Norway demonstrated that it makes sense to encourage young people to vote while they are still living in the communities where they were brought up and where they can be encouraged by their parents to undertake their duties as citizens before many leave home at the age of 18. Many were further convinced that the evidence from those countries showed that, if young people start voting at the age of 16, they are more likely to continue to vote when they are older.
Many Peers were also reassured by the fact that today’s 16 and 17 year-olds are the most informed 16 and 17 year-olds in history, having undertaken citizenship classes at school and having information not at their fingertips but usually at the tip of their thumbs, with their constant tapping of their mobile phones. Mostly, people were aware that this would be a once-in-a-generation opportunity for these young people to express their view on a long-term relationship between our country and EU member states, the outcome of which will affect them longer than any of us and over which they should have a say.
We were deeply disappointed that the Commons did not support our approach and were extremely surprised when the Clerk suggested that the issue was subject to financial privilege. I will address the issue of invoking financial privilege later. First, let me turn to the alternative amendment that we have set out. We are grateful that the Government have dealt with the merits of this amendment in principle and not hidden behind the financial privilege reason that has been put forward by the Commons. We have determined to submit a new amendment that will address the issue of cost. First of all, we dispute the amount that the Government have suggested this amendment would cost: £6 million. In the context of government expenditure of £760 billion, £6 million is chicken-feed. We are talking about 1/1,000th of 1% of the budget. The cost of the referendum is not known, but we know that the cost of the referendum on changing the electoral system to a PR mechanism was approximately £75 million. Given the way that young people energised the campaign in Scotland, even using the Government’s own figures it would be easy, I think, to justify this additional expense. It would be extremely useful if the Minister could give us a detailed understanding and breakdown of how the Government came to this figure.
We accept that about £800,000 would have to be spent on sending 16 and 17 year-olds information through the post during the campaign, as was promised to other voters—although the idea of 16 and 17 year-olds waiting for information arriving by post, when most of them probably have never received a letter in their life, is something of an odd situation. However, we dispute the fact that the Government can include in their estimates a calculation for any additional costs for counting officers’ and regional counting officers’ expenses. We have no idea what the turnout will be, with or without 16 and 17 year-olds. The Government are stabbing in the dark.
According to the head of the Association of Electoral Administrators, the cost of counting does not change in line with turnout. Whether there is a 30% turnout by the British public in the referendum or an 80% turnout, it would not change the amount that public officials are paid. Therefore, an additional 1.5 million voters—even if they all turned out to vote—would not make a difference to the costs of the counting officers’ and regional counting officers’ expenses. Indeed, the chief executive of the Association of Electoral Administrators, John Turner, has stated clearly that, while the Government estimate that £4.2 million of this £6 million would form a part of the costs of the conduct of the poll and thus come from the Consolidated Fund to cover counting officers’ and regional counting officers’ expenses, the association would question that, as the conduct of the poll has nothing whatever to do with registration. He said that, under the fees and charges order 2015, Statutory Instrument No. 476, it is clear that expenses for registration purposes would not be allowed. Indeed, for the last parliamentary election, not one penny for the conduct of the poll went to registration. Let me be clear: we refute the figure suggested by the Government as their estimated cost of implementing this amendment. Nevertheless, in our new amendment we have sought to give a clear indication of how costs could be saved.
Lord Higgins (Con)
The reality is that the House of Commons has decided to invoke financial privilege—not that it is this or that amount. It has the right to invoke financial privilege and the actual amount is irrelevant to that right.
Baroness Morgan of Ely
I do not think that the amount is irrelevant. One of the points that I will come on to is the threshold for invoking financial privilege. It is like a dark art: no one has any idea what it is and there is nothing written down anywhere. I will come on to that point and deal with the constitutional issues later in the debate, when I will be happy to deal with questions relating to financial privilege.
In the amendment, we are trying to address the issue of the costs. We accept that £800,000 would have to be spent on information, because that is what everyone else is getting, but we can bring down the costs substantially. Currently, electoral registration officers write to households and ask for a list of individuals in that household. These individuals are subsequently sent a registration form. They are asked for the names of not only people over 18 but also those who will attain that age in the next year. Therefore, 17 year-olds and many 16 year-olds are already invited to put their names on the list. In other words, we already know who these young people are and they would simply need to complete the second part of the registration exercise. We can be clear that most of this generation would do so online—no postage, no cost.
Therefore, the people we need to focus on are those who will attain the age of 16—the proposed new age of voting in the referendum—in the forthcoming year. We emphasised time and again in Committee and on Report that this would be relatively easy, as we know exactly where these people are—at school.
Lord Pannick (CB)
My Lords, there are many reasons for supporting the Government today, all of which were given by the Minister, but I have to say to the noble and learned Baroness, Lady Butler-Sloss, that I do not agree that financial privilege is a reason to support the Government. It is an obscure subject, and I commend to the House the very helpful paper published by Dr Meg Russell and Mr Daniel Gover of the Constitution Unit of UCL in March 2014.
Financial privilege did not prevent the other place from addressing the merits of this House’s amendment; equally, the fact that financial privilege was asserted by the House of Commons after the certification by the Speaker does not prevent the noble Baroness, Lady Morgan, from bringing forward her amendment in lieu. It does not prevent this House voting on the merits of the amendment—or, as I see it, its lack of merit.
As I understood him, the Minister accepted that that is the case. The Constitution Unit paper concludes on page 13 that,
“it is not considered contrary to the convention for the Lords to respond to financial privilege with … an amendment in lieu … for as many rounds of ping pong as it wishes”.
The normal rules of ping-pong apply. Therefore, financial privilege is a distraction rather than being central to this debate. That is not to dispute the supremacy of the elected Chamber, especially on the issue of the franchise, but that is a different matter. For the reasons given by the Minister, I shall be supporting the Government in the Division Lobby.
Lord Higgins
My Lords, I intervened earlier, and I would like to take up the point I made in that intervention in a moment. I begin by saying a little about the substance of the proposal about votes at 16. I remain of the view, as does my Front Bench, that this is an inappropriate vehicle to carry out such an important constitutional change. The danger is that we have had a precedent of changing the franchise in the Scottish situation, and if we were to persist and succeed on this issue this evening, it would be yet another precedent. That would prejudice a longer-term, overall survey of what we ought to do about the age at which people are entitled to vote.
Having said that, if one looks back to 1969, which is the last time we debated it, on that occasion there was very widespread consultation. If we were to have another Bill on the issue, there would have to be widespread consultation. On this occasion, to the best of my knowledge, there has been virtually no consultation whatever. Back in 1969, when the issue had been widely consulted on, I said to my secretary, “If I get a single letter”—at the time, I had 100 letters or so a day—“asking me to give the vote, I will vote for it”. I did not get a single such letter.
Nowadays, we get thousands of emails sent to us. I have not had a single email from someone in this age group saying, “I am a highly intelligent, very politically motivated person”, or even, “I voted in the Scottish referendum”, and “I would like the vote”. I have had no such representation. I believe that this is being generated inside the House itself.
I turn to financial privilege, which has been raised. I totally reject what the noble Lord, Lord Tyler, said: that this is somehow a massive conspiracy suddenly cooked up in the other place to override us, and so on. I do not think that is so. The procedure on financial privilege is well established. As my noble friend Lord Dobbs said, it has been used time and again. The reality is that if the Commons decides to reject something, as it has done very decisively on this issue several times, a committee is sent behind the Chair to look at the reasons why the Commons is rejecting the Lords amendment. That committee sits behind the Chair, it is advised by the clerks and not infrequently comes up with the proposal that it has relied on on this occasion. It is a quite normal process and in no sense a sudden new conspiracy. I am not at all sure about the point made by my noble friend on the Front Bench as to whether that is the only option that that committee has to put forward as a reason. I believe that, if it wished, it could put forward other reasons as well. But, normally, it comes up with a resolution as far as this is concerned.
What is happening is perfectly normal and not, as the noble Lord, Lord Tyler, suggests, in some sense a conspiracy. As my noble friend said a moment or two ago, we really have to consider very carefully whether it is appropriate to bounce the amendment back yet again. I believe that the answer very clearly is no, because the response that we are going to get at the other end is equally clear—it is going to be to reject whatever amendment the noble Baroness, Lady Morgan of Ely, puts forward. So the sensible course of action is to reject Amendment A1 and accept Amendment A. That would be an appropriate thing to do.
Finally, one might consider why there is such an enormous apparent division on this issue between this House and the other place on the age when it is appropriate to vote. This is not a partisan issue and not something where everyone has clear-cut positions. It is rather curious—but perhaps this House is more expert on grandchildren and the other place is more expert on children. They have clearly taken the view that they do not think that their children should have the vote at the age that is suggested. We should respect that view, go along with the amendment proposed from the government Front Bench and reject that put forward by the noble Baroness, Lady Morgan of Ely.
Lord Kakkar (CB)
My Lords, my noble friend Lord Patel will recognise the advice given to all trainees in the craft specialties—that to be a good surgeon one needs to know how to operate and, to be a great surgeon, one needs to learn when to operate. So, too, one might presume that a Second Chamber, certainly one with the powers of your Lordships’ House, to be a good Chamber needs to know how to use its powers and to be a great Chamber needs to know when to use its powers for the maximum benefit of our fellow citizens, for the good of this Parliament and for the good of our nation.
We have heard important arguments on financial privilege. I have always understood that it is not the position of your Lordships’ House—and it probably has not happened this afternoon—that a decision of the Speaker of the House of Commons is criticised. Those are very important pronouncements, made as part of a considered and long-respected process. It is also difficult to argue that the other place has not considered this matter on a number of occasions and has reached the same conclusion: that at this point it does not wish in this manner to extend the franchise to 16 and 17 year-olds. Most importantly, it is a question of a referendum in a representative democracy. The people of our country send their representatives in the other place and, in that place, on the vast majority of occasions, to exercise their judgment on behalf of those who have sent them. On very few occasions, those elected representatives decide that they must seek the further advice of those who have sent them to the House of Commons by way of a referendum to help to guide the decisions that they will take on serious matters. This is one such occasion, and it seems completely wrong for the unelected but powerful second Chamber to keep on insisting to those seeking the advice of those who have sent them to the other place that the franchise must be changed. It seems completely logical that those who have responsibility in the other place for these matters seek the advice of those who have elected them—that is, the general election parliamentary franchise—and that your Lordships’ House, having I think quite rightly previously argued the case for extending the franchise, on this occasion respects the views of the other place and allows this matter to pass.
European Union Referendum Bill
Lord Higgins Excerpts(8 years, 7 months ago)
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Lord Stoddart of Swindon
I was not being dismissive. I understand the point of view of the United States and of other countries. The problem is that they want huge agglomerates to discuss and decide matters and I believe that there will be a loss of democracy under those circumstances. I may be wrong but in any event the Americans will still want our whisky and we will still want their awful films so trade will go on.
I want to finish with a quote:
“The European Union faces long-term economic decline and the ‘love affair’ of integration is at risk”.
Who said that? Not me. It was Jean-Claude Juncker, the President of the European Commission.
Lord Higgins (Con)
My Lords, I have listened throughout the debate and I remain a little puzzled. A number of possible reports have been proposed but no one has made it clear at which audience the reports are intended to be directed. I suspect very strongly that, even if all these reports were published, the percentage of those voting in the referendum who will have read any of them will be a tiny fraction. Therefore one is bound to ask: at who else are these reports to be directed? They may well be very useful for Members of Parliament but it is unlikely that any of them is going to change our views very significantly at this stage.
To take up the point made by the noble Lord, Lord Green, I think it would be helpful if we had more information. I agree entirely with the noble Baroness, Lady Royall, about the problem of asylum seekers. There is great movement at present not only of asylum seekers but also of migrants. As the noble Lord, Lord Green, pointed out, very complicated issues are arising about the effect on the population and the way in which those coming to the country may eventually become full citizens. I think he is right about that but none the less I am very doubtful whether the various reports which we will consider will have much effect on those voting, even if we include 16 year-olds, but I look forward to hearing the view of the Front Benches on this issue.
Because this is an advisory referendum not a binding referendum, as the note from the House of Commons Library makes very clear, we may find ourselves with a somewhat inconclusive result, in terms of both turnout and the majority. In those circumstances the matter may well have to go back to Parliament and these reports may be very useful in that context, so I am in favour of the reports but we need to be clear what their purpose is.
Lord Hannay of Chiswick
My Lords, I hope that I may put this point to the noble Lord. All the opinion polling that has gone on in recent months has shown that the people who have made up their minds already are a relatively small proportion on both sides, and that a very substantial number of people have neither made up their minds or believe that they have yet been provided with sufficient factual information to enable them to do so. I do not believe that we should surrender to the sort of cynicism which has percolated through this debate whereby it has been questioned whether providing factual information will be of any use at all, will be read by anyone at all or will be unbiased, et cetera. The purpose of these amendments, which were carefully drafted so as not to stray into the realm of advocacy, is to try to fill a gap which I would have thought all the objective evidence shows exists and needs to be filled. I hope that the Minister, who has listened extremely patiently through this long debate, will see her way to moving ahead in a direction whereby help can be provided by giving factual information which would enable people to make up their own minds.
Lord Higgins
I entirely agree with the noble Lord that it is helpful to have more information; that is entirely common ground between us. I merely said that I thought it would be rather naive, for want of a better expression, to suppose that these reports would be read by more than a tiny percentage of the people voting. They may be taken up in the press, of course, and get somewhat wider dissemination, and that would be useful. I am merely saying that we should not exaggerate the effect on the people voting. However, the reports may have a useful purpose in the mean time and perhaps in the longer term.
European Union Referendum Bill
Lord Higgins Excerpts(8 years, 7 months ago)
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Lord Taverne (LD)
My Lords, when the whole question about the voting age came up and the suggestion was made that it should be reduced to 16, I had considerable doubts about it, for the sorts of reasons that have been advanced by a number of people, in quite reasonable speeches, who are opposed to the change.
However, the fact is that there have been a number of inquiries into this and most also turned out to be very doubtful. First, there was the 2004 commission which qualified its recommendation that the voting age should remain at 18 by saying:
“We propose further research on the social and political awareness of those around age 18 with a view to undertaking a further review of the minimum age for electoral participation in the future”.
Then there was the Power report in 2006 which recommended that the voting age should be lowered to 16, explaining:
“Our own experience and evidence suggests that just as with the wider population, when young people are faced with a genuine opportunity to involve themselves in a meaningful process that offers them a real chance of influence, they do so with enthusiasm and with responsibility”.
It came to the opposite conclusion to what I had felt earlier, that someone of 16 might not be sufficiently informed or use their vote sufficiently responsibly at 16.
Then came the Youth Citizenship Commission of 2007 which did not recommend a reduction of the voting age. It found that there was in fact a majority in favour of lowering the age but it thought the sample was too small, saying:
“This is a relatively small and not necessarily representative sample of the population”.
So there was a diffidence about the commission’s recommendations because of a shortage of evidence. The commission went on to say:
“We have found that there is a real evidence gap”.
However, there is no longer an evidence gap. We have had experience from a very wide sample and everyone has found that people in the lower age group deserve praise for the way they approached their task. They found them very responsible and very keen to get the right information. The general feeling was that this lowering of the voting age had been an enormous success. I think that the Scottish referendum has completely altered the situation because this gap in the evidence which the previous commission spoke about has been filled.
There is one other consideration which we should take into account. One of the serious consequences of a vote for Brexit in the referendum is that it will almost automatically lead to the break-up of the United Kingdom. If Scotland votes for staying and England votes for leaving, I cannot see that there will not be another referendum. One has to consider Scottish reactions very carefully. If I was a young person in Scotland—that would have been some time ago—I would be furious if I was allowed to vote in the Scottish referendum but not in the referendum which is of even greater importance if it involves the whole of one’s future. The same position may obtain in Wales because Wales may well decide as well to lower the voting age. If one really wants to keep the United Kingdom together I do not think one wants to confront young Scottish voters and others in Scotland who will be equally adverse to it. That only increases the chance of the break-up of the United Kingdom. The evidence is now plain that young people act responsibly and that they care about the information; the evidence should suggest that there must be a change in the law.
Lord Higgins (Con)
My Lords, I am not in favour of these amendments and I think it would be very naïve to suppose that if we accept them we will avoid a slippery slope as far as the age of consent is concerned, along with the many other issues that have been raised. If that kind of change is to be made, rather than being pushed into it by the precedent of what happened in Scotland it is very important we should have an overall view of the whole issue in a Bill which is publicised and which allows the public to express their view on all these issues. The Government are right to say they will use—with very minor exceptions—the same franchise as was used in the very recent local election.
Many noble Lords have been over this course before. I remember very well when I was in the House of the Commons that the issue of lowering the voting age came up. I said to my secretary that if I got a single letter—at that time I had an enormous mailbag—from someone in the lower age group saying they would like the vote, then I would vote for it, but if I did not get such a letter I would vote against it. I did not get such a letter. In this day and age we are not inundated to the same extent with mailbags. Instead we are inundated with emails. I wonder how many Members have had an email from someone in the age group which the proposal would enfranchise saying that they would really like the vote. I have not had one. I have had enormous numbers of emails but not one like that. That is because this issue has not been publicised. This has become an internal view of the House of Lords and we are not taking other arguments sufficiently into account.
Lord Faulks
My Lords, Amendment 10, in the names of the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith of Newnham, and Amendment 13, in their names and those of the noble Baroness, Lady Royall of Blaisdon, and the noble Lord, Lord Dykes, would extend the franchise to EU citizens who had resided in the United Kingdom for five years or more. Amendment 15, in the names of the noble Lords, Lord Liddle and Lord Davies of Stamford, would also extend the franchise to EU citizens but would not impose a minimum time period for residency in the United Kingdom.
As has been pointed out, many EU citizens have made the United Kingdom their home and made significant contributions to life in this country. No one would wish to deny that but this is of course a vote about the future of the United Kingdom in Europe, so we say that it is right to use the parliamentary franchise as the basis. As my noble friend Lady Anelay explained at Second Reading, we are following the standard practice across Europe. As far as we are aware, no other European member state extends the franchise for referendums to citizens of other states—and there have been many such votes over the last four decades.
The noble Lord, Lord Hannay, spoke about the exceptional circumstances of this poll. This is an exceptional poll in some respects but it is not the only one with significant constitutional ramifications. Referendums in Europe have dealt with the ratification of EU treaties or the currency that a nation should use. These are not trivial issues, albeit that the noble Lord described them as less consequential. Even so, it is said that this is different as it deals with membership. But there have in effect been other in/out referendums: 17 EU member states held referendums about whether to accede to the European Union. Most recently, the Croatian people were asked in 2012. Others have voted not to, including Norway, while in 2013 the people of San Marino voted not even to apply. So far as we can tell, not a single one of those extended the decision to citizens of other states.
Noble Lords in effect suggested that the franchise should extend to include those EU citizens because they are affected by the results of the vote. This argument has its attractions but I respectfully suggest that it does not withstand careful scrutiny. First, why should this test apply only to EU citizens? Yes, the large French community in Kensington or the Portuguese in Stockwell will be impacted to some extent by the decision, but why should it stop at the United Kingdom borders? Surely Spanish citizens in Madrid would feel the effects of Britain leaving, as would the Maltese in Valetta or the Poles in Warsaw. The United Kingdom is a major global power and the EU is the world’s largest market with a population of over 500 million. If the United Kingdom left, a great many people around Europe would be affected to a greater or lesser extent. That hardly means they should all get a vote. Let me respectfully suggest that it is not enough simply to look at who is affected by a vote in order to decide who should take part. Furthermore, the United Kingdom would feel quite deeply the impact of further enlargement of the European Union. That does not mean that in future United Kingdom citizens should be able to vote in an accession referendum in Turkey or Albania or anywhere else that might join the European Union. We need to start elsewhere. That is why the Government brought forward proposals building on the general election franchise and that is the appropriate starting point for a decision of this kind.
As for the five-year residency threshold, the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, propose in Amendment 13 that it should be given to those who have resided in the United Kingdom for five years or more. This is a much more nuanced amendment than the other one. I wholly understand the noble Lord’s intention for this five-year threshold. No doubt many EU citizens who have settled here for many years feel a connection to the United Kingdom and the noble Lord is saying that we should give them a vote in the poll. Of course the longest resident requirement for EU citizens in order to qualify to apply for British citizenship is five years of lawful residence. After being free of immigration time restrictions for 12 months, an EU national can then apply for naturalisation to become a British citizen. So many EU nationals who meet the noble Lord’s threshold will be able, and have chosen, as the noble Lord, Lord Collins, pointed out, to take up British citizenship. I am sure many choose not to but that does not undermine the point that the option is open to them. Secondly, I draw attention to the practicality of identifying those who fall within the threshold. The franchise for local elections does not include any time limits on residency. Implementing such a limit would therefore be much more complex and time-consuming than simply using the local election franchise.
The noble Lord, Lord Davies, suggested it is unfair to exclude EU citizens when those from Malta, Cyprus or Ireland are included. I respectfully do not believe there is any actual inconsistency here. The inclusion of these three member states is not related to their position in the European Union. It is because Malta and Cyprus are part of the Commonwealth and there is a history of reciprocal voting rights, as between the United Kingdom and Ireland. The inclusion of Commonwealth and Irish citizens in the Westminster franchise is a long-standing part of the country’s constitution and it reflects the historical ties shared between the United Kingdom and the Commonwealth. This is a legacy of the Representation of the People Act 1918—the same legislation that extended the vote to women. We could hardly include some Commonwealth citizens and not others in the franchise. Of course there is a requirement of residency; I need hardly say. It would not be right to start unpicking the constitutional relationship between the United Kingdom and the Commonwealth.
Finally, noble Lords will want to reflect very carefully on how this change would look to the public. I entirely accept the point the noble Lord, Lord Hannay, made that this is not intended to affect the Westminster franchise but I return to the point that I made in relation to the first group of amendments, a point also made by my noble friend Lord Ridley. It is of fundamental importance that this vote is not just fair but seen to be fair. To appear, however innocently and whatever the reality behind the reasons, to be altering the franchise to change the result in some way risks undermining the effectiveness of the referendum. No doubt partly for these reasons, the proposals to include EU citizens in the franchise were rejected by large majorities in the House of Commons.
The noble Lord, Lord Wallace, asked whether I could help the House with how many EU citizens were actually on the electoral register. The statistic I have is that there are approximately 2.7 million EU-born citizens resident in the United Kingdom. The source for that is the World Bank’s estimate of migrant stocks in 2010, as updated by the UN Department of Social and Economic Affairs in 2013. I will endeavour to answer that question between now and Report; how successful I will be, I am not sure, but I will certainly endeavour to do so.
I was also asked what would be the consequences for EU nationals were the referendum to result in the United Kingdom leaving the European Union. As the House will know, the Government are confident that they will successfully negotiate a change in the relationship with the European Union and that the Prime Minister will then ask the country to confirm that we should remain a member of the European Union—albeit on somewhat changed terms. So what might happen to these EU citizens is entirely a hypothetical question, but noble Lords may well conclude that it is most unlikely that they would simply be cast loose, as it were, as is suggested.
Lord Higgins
I have been listening very carefully to the debate. Perhaps I may leave a thought with my noble friend. If the unfortunate circumstances arose where it turned out that the result was determined by this particular group or an accumulation of groups which have been controversial, that would obviously raise the question of whether the vote was valid in some people’s minds. Is it not therefore important that we should have a very clear definition of what majority is needed to deal with this situation?
Lord Faulks
I think my noble friend is referring to the possibility of some form of threshold. That is not part of the Government’s intention by the Bill. The point he alludes to is important, which is the risk, at least, that if EU nationals are given the right to vote—however cogent the reasons may be because of their participation in our national life—and the vote results by a narrow majority in our staying in Europe, the result of the vote may not command the same confidence that I am sure that all in your Lordships’ House want the referendum to command. In those circumstances, I ask the noble Lord to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Higgins Excerpts(12 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.
Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.
Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill—what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.
As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.
We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.
Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.
We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons’ opinion of your Lordships’ amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.
Lord Higgins
If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed—that is, guillotined—and the debate was not brought to a conclusion in the usual way?
Lord McNally
My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord’s experience, who must have carried through quite a few Bills himself on timetables and the rest—
Lord Higgins
When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.
Lord McNally
I will leave it to the Opposition to explain fully the introductions that they made to timetabling,
Lord Higgins
Does the noble Lord agree that the crucial thing we have to decide this evening is whether we should send the amendment back to the Commons? I find that I now understand the issues put forward by the noble Lord, Lord Alton, much better than I did at earlier stages of our parliamentary proceedings. Given all the representations that we have received, that is probably true at the other end of the building as well. Therefore, there may be a strong case on those grounds for their reconsidering it. The argument is otherwise very simple, which is that they did not conclude the debate on this amendment in the previous exchanges in the House of Commons. Therefore, if we send it back, it will give them an opportunity to do that. Indeed, if the Minister sought the leave of the House at the end of the debate in the other place, he could actually reply to the debate, which he was prevented from doing by his own guillotine.
Lord Bach
I am very grateful to the noble Lord—I think the whole House will be grateful to him—for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again—it is of such huge importance.
Baroness Finlay of Llandaff
My Lords, I very strongly support the amendment. There is a very strong reason for looking at children separately from adults. Indeed the age of 16, as outlined in this amendment, makes sense because in the General Medical Council guidance 16 is the age at which a child can be assumed to have capacity to consent. When treating a child who is actively withholding consent to treatment and who is aged between 16 and 18, the doctor should and must think again. Those under 16, however, go into treatment at the consent of their parent or guardian, not of themselves. If they are then subject to error, whether that is unfortunate or negligent or almost wilfully neglectful, they have done so not with their own informed consent but with that of others.
The amendment that the Government have brought forward, which relates to neonates and birth-related trauma, is, I suggest, fraught with difficulties over the problem of premature babies and accurate estimation of the date on which they would had been born. Even in the very best of hands, estimates of their expected date of delivery have to have a plus or minus of four days around them. That would impose an eight-day error. I fear that there will be endless arguments. Should there be a small, very premature baby in a neonatal unit, and should somebody inadvertently inject the wrong drug or should their ventilator inadvertently be set incorrectly—switched off from oxygen levels, or whatever—I fear that there will be arguments around whether the expected date of delivery was really the one that had been written on the notes. Was it actually two days forward from that or two days back, depending on the date of the error?
This amendment avoids that kind of deeply traumatic argument and recognises the fact that a child undergoing treatment has not given their informed consent to it. That treatment has been at the consent of others acting on that child’s behalf. They must therefore be treated differently from adults because they are vulnerable on two counts: first, their age, and, secondly, because there was of course something wrong in the first place for them to be entrusted to the care of the service which then failed them.
Lord Higgins
My Lords, perhaps I may intervene for a moment to ask my noble friend a rather simple-minded question. The Reason given by the Commons set out in 170A states:
“Because it would alter the financial arrangements made by the Commons”.
Can my noble friend briefly tell us exactly what these financial arrangements are, to the extent that they affect the state of the economy in terms of public expenditure and so on?
Legal Aid: Social Welfare Law
Lord Higgins Excerpts(12 years, 3 months ago)
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Lord McNally
My Lords, one problem with treating Parliament as a group of grown-ups is that such exercises will be open to abuse. The Government have never said that this would happen. What the civil servants did, quite properly, in their impact assessment was put forward a range of possibilities. Throughout the Bill—and I presume now that we are moving to Report he will continue on his merry way—the noble Lord has been looking at worst-case scenarios, saying that worst-case scenarios are inevitable and therefore, “Woe is me”. That is not what the impact assessment is about. It is about trying to take an intelligent and rational view, but, as I have said before, a view that these are not inevitable. This impact assessment is not an almanac; it is a look at a range of options that could happen. As such, it was a reasonable way of approaching the task ahead.
Lord McNally
He is certainly my friend. I will leave the nobility to the opinion of the House.
Community Legal Service (Funding) (Amendment No. 2) Order 2011
Lord Higgins Excerpts(12 years, 7 months ago)
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Lord McNally
These were all foreshadowed in the Green Paper. The noble Lord, Lord Newton, is not a happy bunny but, as I said to the noble Lord, Lord Beecham, if we were not willing to take tough decisions, there would be a lot more unhappy bunnies around because we would be paying interest rates of two, three or four times what we are paying now, which would result in far greater cuts in public expenditure and services. The fact that our Government are not making headlines in relation to the economic situation in which they find themselves is because we had the courage to take tough decisions early. I have no doubt that when we ask colleagues and the Opposition to face up to that fact, we will always have the problem that these are tough decisions; we have never resiled from that.
Lord Higgins
Yes, I realise that, but my noble friend has just made a rather extraordinary statement. He said that we would be paying interest rates three or four times greater than we are now and I just do not understand what he means.
Lord McNally
At what rates is Ireland borrowing at the moment? I am suggesting that we would have lost control of our economy in the way that some parts of Europe have lost control of their economies. The consequences for public expenditure would have been much more severe. I would have thought that I would have had the support of my noble friend in that.
Lord Higgins
No one is more enthusiastic than I am that we should cut the deficit as fast as possible. I have made that clear, time and again. I just did not understand the quantitative statement that he made, but I do not wish to delay the House further.
Lord McNally
On the other points that the noble Lord, Lord Newton, made, legal aid is currently available for legal advice on any mental health matter and representation for mental health matters heard in the county court, such as charging a detained person’s nearest relative for mental health legislation purposes, for damages claims and for representation before the first tier mental health tribunal and onward. We propose retaining these changes within the scope of legal aid.
In 2010, tenders for legal aid contracts for mental health demonstrated a strong demand for mental health work, with nearly three times as many new cases bids than there were cases available.
I hope that answers the points that the noble Lord, Lord Newton, raises; namely, that there is the supply that he was concerned about and that we will continue this in scope.
The House will be aware that the Government have had to make some tough decisions. As I mentioned, the noble Lord, Lord Bach, accepted that when he had responsibilities for this matter the legal aid fund had to play a part in the often difficult exercise. To govern is to choose. It is a key role of Government on behalf of the taxpayer to ensure that the amount they pay for any service represents maximum value for money. In this context it is essential that the Government ensure that they only pay the rates that are necessary to secure the level of services that are required. While this may not be welcomed by those who provide services funded by legal aid, it is a reality that suppliers of other services across the country face on a daily basis. The Government recognise that some providers may choose not to continue to provide legally aided services in this environment, but it is not the purpose of the legal aid system to sustain the current legal market. Rather, we want to continue to have a sufficient supply of providers of satisfactory quality to provide an appropriate level of services for legally aided clients.
The order that we are debating this evening introduces a number of changes to the fees that the provider can currently receive for carrying out legally aided work. The main features were referred to by the noble Lord, Lord Bach. Justice is required to make savings in the year 2014-15 of about £50 million. My noble friend Lord Marks referred to the total savings of £120 million. With the exception of the family fee reforms which will take effect on 1 February 2012 when new contracts under the family re-tender exercise are expected to commence, the new fees took effect on 3 October 2011 and apply to all cases commenced after that date.
The reforms were subject to a full public consultation which ran from 15 November 2010 to 14 February 2011. I have already referred to that in reply to the noble Lord, Lord Beecham. With the exception of the Law Society, no respondents provided any form of detailed numerical analysis of the market. The Law Society did so through Mr Andrew Otterburn. His report indicated that while the fee reduction will inevitably reduce the income of solicitor firms, on the whole, they would still make a profit even before making any efficiencies in working practices.
Subsequent to his report, Mr Otterburn specifically confirmed to the MoJ that, in his view, an overall phased reduction in fees of around 10 per cent, with the reduced fees only applying to new cases commenced after the implementation date, would allow solicitor firms time to adjust to the new fee levels and would not, therefore, necessarily make supply unsustainable.
The Government accept that the proposed reforms may be particularly challenging to the not-for-profit sector. That was raised by a number of colleagues. However, it is also the case that the major issue for this sector, generally, is change to other sources of funding; for example, as was acknowledged by the noble Lord, Lord Bach, from local authority cuts, which may make supply in the areas they cover vulnerable in any event.
This is clearly a matter for concern for the Government as a whole, and the issue of the future of the voluntary advice sector will be considered as part of a cross-Government review on which an expected announcement will be made shortly. In the interim, the Government have already provided transition funding to assist the not-for-profit sector to adapt to the changing financial environment. I understand that overall 45 individual CABs and 17 law centres have taken advantage of this fund. As the noble Lord will be aware, the Government will also be providing a further £20 million of funding for the not-for-profit sector. Specific details of this fund will be made available shortly.
In the context of legal aid services, the issue is whether services will be available for clients rather than whether that service is provided by any particular provider. We assessed the likely impact of the reforms when considering the responses to the consultation and overall are satisfied that the reforms are sustainable and that, although individual providers may leave the legal aid scheme, there will be a sufficient supply of providers of satisfactory quality to provide an appropriate level of service in all areas of law. The Government therefore consider that the fee reductions will be sustainable and will ensure that clients can continue to access legally aided services.
As noble Lords will be aware, the Justice Committee report on legal aid concluded that, given the extent of the savings that the Ministry of Justice is having to make, in principle it is correct that fees should be reduced. We are willing to look at areas of isolation—the so-called legal aid deserts—and there are a number of actions that the Legal Services Commission can take to mitigate shortfalls if they develop. As I said earlier, it is also true that some of the fears that people would not come forward have not been borne out in areas where individual firms have collapsed. Indeed, in all the areas where we put forward contracts, there has been an oversupply in terms of those seeking that work.
In addition, there is a genuine alternative. The Community Legal Advice telephone helpline is an alternative for those involved in legal aid. I see the noble Lord, Lord Beecham, shaking his head. The other night, I went to a Law Society function giving prizes to successful law firms, and I was amazed by how many of the prize winners were offering online and distance advice. The old idea of face-to-face may not survive. There is no doubt in my mind that the legal profession is a profession in transition in many respects.
I am being told to shut up, and I will. The fact is that wherever we have been looking at new contracts, we have found that they have been oversubscribed, so I do not think that this is the issue that is suggested. It is not a 10 per cent cut per individual. It is a challenge to those firms and to the legal profession to find different methods of service, different structures and different efficiencies. That is a pattern that many professions and many industries have found over the years. We are confident that there are sufficient numbers of providers willing to remain in the legal aid market. I am well aware that a lot of what we have discussed today is a dress rehearsal for when the LASPO Bill comes, but I do not believe that it would be right to pass this Prayer this evening, and I sincerely hope that the noble Lord, Lord Bach, will resist putting the Motion to a vote.
House of Lords: Reform
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Lord Tyler
If the noble Lord had read his own White Paper, let alone the Government’s White Paper, he would know that three tranches of elections to this House—whether it is 80 per cent or 100 per cent—mean that at no time would the membership of this House have a more up-to-date mandate than that held by Members of the other House. That is absolutely clear—and Jack Straw and the noble Lord, Lord Hunt, were clear about it, too.
I am very respectful and appreciative of the wise heads in this House, but they cannot go on asserting the primacy of the other House and yet build up the impression in this House and beyond that they intend to threaten a veto on any reform Bill that the other House sends us. That is yet another irony.
Breaking a habit of a lifetime, I will concentrate for the few minutes that I have on the one area where I think there may well be a consensus in your Lordships’ House. Several Members have questioned the suggestion that 300 is a sensible number for a reformed House. This matter requires very careful analysis by the Joint Committee. The commission headed by the noble Lord, Lord Wakeham—who was here just now—recommended 550; the 2001 government White Paper 600; the House of Commons Public Administration Select Committee 350; the Bill which was sponsored by Messrs Clarke, Wright, Cook, Young and Tyler, 413; and the Jack Straw/Philip Hunt White Paper 435. At no stage has anyone suggested that the workload of this House could be undertaken by 300. We all thought that it was preferable to have a second House of Parliament where it was not necessary to have full-time parliamentarians. I regret that the White Paper has gone on that route when it has never been recommended.
There are five reasons why 300 Members is too small a number. First, as I have hinted, Parliament as a whole benefits from having a proportion of Members who retain an active involvement in other walks of life, which would be very difficult to have with only 300. Secondly, given the relatively long but one-term limited service, it would be difficult to recruit candidates who were prepared to be full-time parliamentarians while they were not able to take part in other activities and go back to another career. Thirdly, your Lordships should note that 80 of the 800 Members of your Lordships’ House are already involved in European scrutiny. It is already a very considerable commitment and I do not think that 300 could do the job.
Lord Higgins
In fact, the White Paper comes up with the very strange proposition that the figure should be around 300 or so because that is the average attendance in this House. However, this assumes that the average attendance covers all the same people, which is absolute rubbish. People come depending on their expertise in a particular debate. We need more than that number in order to get the coverage.
Lord Tyler
I am very grateful to my noble friend, but there is an additional reason. In fact the average is not 300; it is over 400. That figure is out of date. I accept entirely what my noble friend said and I hope that there will be support from other Members across the House when it comes to looking at this issue in the Joint Committee.
Finally, under whatever system of PR, if the number is so small it will be quite difficult to get diversity—indeed, even gender balance—in the membership of this House. If only 80 Members are elected in each tranche there will be relatively small multi-Member seats and it will be quite difficult to get the sort of diversity and gender balance that I know many Members of your Lordships' House wish to have. Many have already expressed concerns on this.
Political and Constitutional Reform
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Lord Higgins
We have heard various cost estimates, but not one for the redistribution of the boundaries under the Boundary Commission. What is that cost estimate? I do not share the noble Lord’s view on the Boundary Commission. In a public inquiry in my former constituency of Worthing all the political parties and everyone were agreed on what the right answer was. After the matter had been concluded, the Boundary Commission, without warning, came up with a totally different solution. Should there not be an appeals procedure, at least in extreme cases where the answer seems to be wrong?
Lord McNally
We will have to see what the proposals are in the Bill to meet the objective of streamlining the work of the Boundary Commission. I think that any reasonable person would say that is needed if its work is to be relevant to elections. I repeat that a gap of 10 years between the commission doing its work and the holding of an election renders that work absurd. It is very difficult to respond on individual constituency issues and to give at the moment a precise response on costing. All those will come forward in due course and in proper time.