Sentencing Council: Guidelines

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 20th November 2013 Lords Chamber

[Lord McNally]

My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,

“it would be contrary to the interests of justice to do so”.

What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?

[Lord McNally]

Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.

Probation Services: Privatisation

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Thursday 31st October 2013 Lords Chamber

[Lord McNally]

I have great confidence in the human resources work that is being done to make sure that, where work is transferred across to the private and voluntary sector, existing probation officers get good opportunities for employment. My view is that many of the new entrants into this market will want to grab the experience of existing probation officers. I also hope that we can push forward with the idea of a chartered institute of probation, which again would give probation and probation officers the status that they previously lacked in our system.

[Lord Marks of Henley-on-Thames (LD)]

Can my noble friend say what steps the Government are taking to ensure that the new owners of the community rehabilitation companies, when they are sold by the Ministry of Justice in the second stage of this process, will represent the diverse range of providers that he described and which the Government seek, rather than just a handful of large commercial organisations?

[Lord McNally]

This also is work in progress and where we have learnt, including from some past mistakes. We have put aside money to allow would-be entrants, particularly in the voluntary sector, to prepare for bids. My impression is that we are tapping into a large unused resource. Let us never lose sight of what we are bringing forward. The part of the bargain that really excites me is that we are going to be able to give help, support and rehabilitation measures to those who are sentenced to less than 12 months, the very sector which includes some of the most prolific reoffenders. This is a rehabilitation revolution. Although transfer and change are always difficult, we have this on track. However, in answer to the original Question asked by the noble Lord, Lord Ramsbotham—and I know the care with which he takes an interest in this—we will be keeping these matters under constant review and, as always, I am willing to meet him on these matters.

Human Rights: Vinter and Others v United Kingdom

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 29th October 2013 Lords Chamber

[Lord McNally]

I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?

[Lord McNally]

That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.

Inheritance and Trustees’ Powers Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 22nd October 2013 Grand Committee

[Lord McNally]

My Lords, we have had a good debate, which I am sure bodes well for very interesting discussions in the Public Bill Committee. I again put on record my thanks to the noble and learned Lord, Lord Lloyd, for taking on the responsibility as chair of that Committee. As noble Lords will have gathered, I am also much reassured by the presence close by of Professor Cooke as I try to give answers to matters raised by noble Lords.

The first of my noble friend Lord Henley’s questions was about the situation where there is no surviving spouse or children. In such a case, the law remains the same. As to how the fixed sum was reached, that came out of a study in 2005, which made me think that it might be ripe for looking at again. On the question of whether this is a surprisingly large sum, one of the factors is housing, which makes it relatively easy for an estate to have quite large sums in it. Nevertheless, I am told that it affects at the moment only 2% of estates, partly because, as was mentioned, people who have a house and realise that its value is rising have the incentive to make a will.

The point that my noble friend raised about chattels is one that we may well explore in Committee. As I think my noble friend Lady Hamwee said, it is in respect not just of jewellery but of paintings and other things where there might be a wavy line between investments and chattels. That is certainly something to look at. For the same reason that I will refer to when I come to the interventions of my noble friend Lord Marks, I assure my noble friend Lord Henley that this procedure will be used only for non-controversial reforms. That is its strength and why Parliament has confidence in it. We should keep to that kind of discipline.

As the noble Lord, Lord Beecham, said, the noble Lord, Lord Wills, took us to interesting areas. However, the noble Lord was right to point out the danger of mischief and of the abuse of elderly and isolated individuals. Much of that is the responsibility of the Office of the Public Guardian, which also comes within my ministerial responsibilities. Allegations of theft or overcharging by any professional are serious and concerning but I do not believe that this Bill is the right place to tackle such misconduct. The Inheritance and Trustees’ Powers Bill does not directly deal with wills but instead focuses largely on situations where no will has been made. Dealing with the concerns raised by the noble Lord would not only expand the content of the Bill to deal with wills but would mean taking it into the territory of professional legal regulation, which would be a very significant step and is already dealt with under the auspices of the Solicitors Regulation Authority and the Law Society. However, the Committee will undoubtedly consider the points made by the noble Lord, Lord Wills, carefully unless the chairman rules that out. Not that I am not suggesting that will happen—we look forward to an interesting debate on any amendment tabled by the noble Lord, Lord Wills.

My noble friend Lord Marks gave us a glimpse of the detail into which Liberal Democrat conferences go in making policy. I cannot quite remember the debate myself, but I am sure there were many speeches from the floor that dealt with our policy on this. I have to say to my noble friend that he used a good deal of his speech to talk about things that we have not done and were not in the Bill. These are very relevant and may well need to be brought before Parliament, but he gave the game away at the end of his peroration when he described the issues that we have left out of the Bill: he will see when he reads Hansard that several times he used the word “controversial”. It is because they were controversial that they fell foul of the request of the noble Lord, Lord Henley, that we stay clear of that.

[Lord Marks of Henley-on-Thames]

My Lords, I draw my noble friend’s attention to a distinction that I hoped I had made between controversial proposals of the Law Commission, which I suggest ought to be brought before Parliament for legislation, and non-controversial proposals, such as are included in the Bill, which are suitable for this procedure. I hope I was making it clear that I do not suggest that this fast-track procedure is suitable for controversial legislation, but I do suggest that the Law Commission should not be frightened or intimidated away from introducing controversial proposals. Indeed, when considering its new, 12th—I think—programme of law reform, it has made it clear that it does not propose to steer clear of controversial proposals. I believe that that is thoroughly laudable.

[Lord McNally]

I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.

Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.

My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.

I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.

I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.

Judicial Appointments Commission Regulations 2013

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Monday 22nd July 2013 Grand Committee

[Lord McNally]

I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—

[Lord Marks of Henley-on-Thames]

My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.

[Lord McNally]

That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Monday 8th July 2013 Lords Chamber

[Lord McNally]

My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.

[Lord Marks of Henley-on-Thames]

My Lords, can my noble friend say at this stage how far organisations such as Citizens Advice appear to be coping with the changes? In particular, what, if anything, are the Government doing to assist Citizens Advice and others in the sector to introduce new methods of working to help them provide their services where legal aid is not available?

[Lord McNally]

My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.

EU Treaties: Justice and Home Affairs Opt-Outs

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Monday 1st July 2013 Lords Chamber

[Lord McNally]

I agree with both noble Lords that the European Union Committee’s report was, as one would expect, extremely thorough and thought-provoking: hence the fact that the Government are studying it very carefully. We have written to the noble Lord to beg for a little more time to produce a response. Perhaps I may therefore give him a response with which I am sure he is well familiar: the response will be coming shortly.

[Lord Marks of Henley-on-Thames]

My Lords, in the event that the Government were to exercise the opt-out, what improvements to the European arrest warrant system in particular would in their view be desirable in order to opt back in, at least to the arrangements for combating serious cross-border crime?

[Lord McNally]

My Lords, that is a good example of why we are giving careful thought to this array of measures. The European arrest warrant has played an important role in speeding up extradition arrangements between countries and represents the type of practical co-operation that we should all support. However, despite its success, the use of the warrant for trivial offences has damaged its reputation with many, and lengthy pre-trial detentions have also caused problems in some cases. It is those areas of proportionality and practicality in using the warrant that we are trying to address, both in discussions with our European partners and in looking at the process as it affects our own dealings with this warrant.

Legal Aid

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 26th June 2013 Lords Chamber

[Lord McNally]

No, my Lords. When one gets into one of these processes, those kinds of letters are sent to various distinguished newspapers and of course we take note of them. We are doing two things. We have never hidden the fact that part of what we are doing is because of financial constraints. The legal aid budget has to take its share of the burden of our spending cuts but we are trying to do that in a way that retains the fundamental access to justice. We have consulted very thoroughly. We have had some 16,000 responses, which we are working through. We will try to come back with constructive proposals, so long as the legal profession recognises that we have to make the savings that are necessary for the taxpayer.

[Lord Marks of Henley-on-Thames]

My Lords—

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, it was a Labour Question to begin with. If the responses to the consultation demonstrate that there are savings to be made in other areas, particularly in the resource-hungry high-cost criminal cases, will my noble friend’s department use those savings to mitigate the harshness of the legal aid cuts in other areas where the effect of the proposed cuts is most serious?

[Lord McNally]

We are certainly looking across the piece and making decisions. Our current thinking is not to compete crown court advocacy and very high-cost crime cases. We have made separate proposals to reduce fees in this area, which are set out in the consultation. However, my noble friend is right. Under the current system, the most expensive single criminal legal aid case in 2010-12 cost the taxpayer £8.5 million. Under our present system, this would reduce to £6 million. The total cost to the taxpayer of just the top three cases in 2011-12 was £21 million.

Offender Rehabilitation Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 25th June 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I will make one very brief point in relation to this. Of course, one has sympathy with the overall notion that it is important that the classification of offenders as low, medium or high-risk is carried out with a great degree of care. However, I would suggest that the classification reflected in the title of the new clause as proposed in the amendment,

“Low, medium and high risk offenders”,

is more likely to be accurate than the classification in proposed subsection (2) of the amendment, which deals with the classification of offences. The reason for that is found in the words of proposed subsection (2), which says that,

“the definition of a low or medium risk offender shall not include offences of a violent or sexual nature, stalking or domestic violence”.

That would mean that any ordinary common-law offence of assault, any assault occasioning actual bodily harm or any low-grade affray would take an offence out of the classification that would enable the offender to be classified as low or medium risk. These classifications need to be capable of fine-tuning and I have serious doubts whether it is appropriate for that fine-tuning to be given effect by a classification that merely considers the offences rather than the offenders.

[Lord McNally]

My Lords, this has been a brief debate but I fully appreciate and accept the point made by the noble Lord, Lord Beecham, that it is an important one and I hope that I can respond constructively.

I thank my noble friend Lord Marks for his intervention. It is questionable whether the kind of fine-tuning in this area to which he referred is done at arm’s length. It is done by the professionals on the ground.

The noble Lord, Lord Beecham, has referred in a number of his interventions to the Chief Inspector of Probation, Liz Calderbank, and the concerns that she has expressed. I make it clear that we have carefully considered the points she has made in response to our consultation. Our strategy document specifically sets out how we will seek to ensure that some of her concerns are met. The Secretary of State has met the chief inspector to discuss her concerns and she will continue to make an input as we develop this policy.

Another point made by the noble Lord, Lord Beecham, was the importance of victims. We share that concern. We are retaining the victim liaison role for all cases to which it applies. We are committed to ensuring that the reformed system is responsive to the needs of victims, and we decided it was right that the public sector should continue to exercise its experience and professionalism in conducting this role.

In discussing these areas, it is easy to exploit public emotion and concern when one refers to sex offenders, murderers or rapists. Let us be clear: every offender who poses a high risk of serious harm to the public will continue to be managed by the public sector probation service. Public sector probation professionals will decide on the allocation in each case. They will retain management of every offender who poses a high risk of serious harm to the public and every offender who falls under the multiagency public protection arrangements—or MAPPA. We will not get into second guessing the judgment of probation professionals about who poses a high risk of serious harm but we will have a very clear set of rules.

The public sector will have overall responsibility for public protection and the Ministry of Justice will ensure the effective management of risk of serious harm. We will set out clear expectations and standards in service level agreements and contracts with both the public sector probation service and market providers. Day-to-day responsibility for managing the risk of serious harm that an offender poses sits with the organisation allocated the case management according to the standards set. This will be the public sector in the case of those who pose a high risk of serious harm and contracted providers in the case of those whose risk of harm is assessed as medium or low.

Let me reassure noble Lords that this matter of risk has been foremost in our minds when designing the new system. Although the majority of offenders will in future be managed by contracted providers, we are clear that every offender who poses a high risk of harm to the public will continue to be managed by the public sector National Probation Service. We are also clear that it will be professionals in the National Probation Service who assess the risk posed by every offender at the outset. By the way, I take pride every time I read the words “National Probation Service”. One of the good things that will come out of these reforms is a National Probation Service with the esteem and professional recognition that it deserves.

We have already recognised that the public will want reassurance that those who have committed the most serious sexual and violent offences will be managed by the public sector probation service. That is why we have said that anyone managed under multiagency public protection arrangements will remain with the public sector, whatever their risk level. That includes offenders who have committed serious sexual or violent offences and other offenders who may cause serious harm to the public. The proposed amendment would go further, requiring all those who have been convicted of violent or sexual offences, stalking or domestic violence to be treated as high risk regardless of the length of sentence imposed. Many of those individuals will already fall to be managed by the National Probation Service under MAPPA, but we believe that a blanket approach like this goes too far and would not be effective in identifying those individuals who need the most careful management. Indeed, it would mean major changes to the way the current probation framework deals with offenders. While I am sure that is not the noble Lord’s intention, I hope it will help if I explain how risk is assessed and managed, and why this amendment would cut across professional discretion.

Assessing and managing the risk posed by offenders is a complex job involving a great deal of professional expertise. It needs to take a wide range of circumstances into account. The offence of which an offender has been convicted is only one of the relevant factors and is not always a good indicator of risk. There will be many others: age, criminal history, education, employment, substance misuse, interpersonal issues, and accommodation status, for example.

It is vital that the experienced professionals can use their expertise to make the right decisions to protect the public. I believe that it should be those practitioners, rather than Parliament, who should decide what constitutes a high risk of harm. Automatically deeming high risk an offender who has committed a particular offence could mean subjecting that individual to supervision that is significantly in excess of what is warranted. Indeed, there is a possibility that for low-risk offenders, providing overly heavy supervision and intervention might actually increase rather than decrease their risk.

It might also provide some reassurance if I set out in more detail how the process will work once the initial allocation has been made. During our consultation, we were told that splitting the management of offenders between the National Probation Service and the contracted providers would require clearly defined responsibilities and accountabilities at every level and a clearly defined process for managing rapid changes in offender risk. We agree, and we have built those into the design of the new system.

We are developing a risk management system that is both proactive and responsive to changes in risk. At the heart of our system is the recognition that at an operational level those managing an offender must have day-to-day responsibility for managing the risk of harm posed by that offender. This will be the National Probation Service in the case of those who pose a high risk of serious harm and contracted providers in the case of those whose risk of serious harm is assessed as medium or low. However, we also recognise that risk of serious harm can change during the course of a sentence, and we are putting a series of safeguards in place to ensure that changes in risk are picked up and appropriately acted on and that responsibilities are clear at every level.

We will pursue an approach that will build on existing good practice. We already know that good quality offender management practice supported by clear policies and close multiagency work are the necessary building blocks for effective risk management. The new National Probation Service and providers will be required to interact and work together to ensure a cohesive approach to managing risk.

I turn to the detail of the process we envisage. The National Probation Service will conduct an assessment at the outset, which will determine who manages each offender. It will be the National Probation Service in the case of those who pose a high risk of serious harm, and contracted providers in the case of those whose risk of serious harm is assessed as medium or low.

During the course of the sentence, providers will be required to risk-manage the offender within their case load We will place contractual obligations on providers to ensure that they have appropriately trained staff and organisational policies for the management of risk of serious harm. Where there is a significant change in circumstances that indicates an increase in the risk of serious harm, the contracted provider will be required contractually to refer the case to the National Probation Service. It will be for the National Probation Service to confirm whether the risk of serious harm is high.

If a decision is reached that the risk of serious harm has escalated to high, the responsibility for the management of the case will transfer to the National Probation Service. Where case transfer happens, this will be achieved in such a way that it does not destabilise the offender. Involvement with the provider could continue, while the case responsibility will be with the National Probation Service.

I am confident that the measures that I have outlined will provide a robust system. I understand that noble Lords share that desire to ensure that the new system builds and improves on the good practices that now exist. However, I come back to the point that it is the skilled and experienced practitioners in the public sector National Probation Service who are best placed to make the risk decisions.

As I said at the beginning, I welcome this intervention, particularly with the noble Lord’s assurance that he does not intend to divide on this amendment. I make no apologies for going into detail in my reply, which I hope will be of assistance to him and to the House in seeing how we are developing this matter.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, this is an amendment that I moved with my noble friends in Committee, and I do not propose to repeat extensively the arguments that I put then. They are in essence that the present options for sanctions under new Section 256AC that are available to a court upon breach of supervision requirements are in essence punitive and involve a short term of imprisonment, a fine, an unpaid work requirement or a curfew. We stress that the court may well find it necessary and more appropriate on investigation of a breach of supervision requirements to have regard to the rehabilitation of the offender so as to make desirable changes to those supervision requirements. The court having investigated the breach will be in the strongest possible position to make such a recommendation. I have in mind in particular the power of the Secretary of State to make requirements to participate in particular activities in accordance with instructions given by the supervisor: drug-testing requirements, drug appointment requirements and so forth.

When we proposed the corresponding amendment in Committee, my noble friend the Minister was kind enough to say that we had made a sensible and practical suggestion. He promised to examine the technicalities of the process and to return to the matter at a later stage. Therefore, I now look forward to hearing from him the results of that examination. I beg to move.

[Lord McNally]

My Lords, my noble friend has accurately reported my remarks in Committee, which did not, he will have noted, commit me to bringing forward a government amendment; I have taken legal advice on that. However, I am grateful to him for the characteristically clear and reasoned way in which he has made the case for Amendment 9.

I said in Committee that my noble friend’s amendment seemed a practical suggestion and I undertook to take it away and examine the technicalities of the process. I am happy to say that on the issue of principle that the amendment raises, the Government are persuaded by my noble friend’s arguments.

There might well be circumstances in which a court dealing with breach concludes that the rehabilitation of the offender would be better addressed by a variation of the Secretary of State’s supervision conditions. The Government agree that it should be possible for courts to make a recommendation to the Secretary of State and that there should be a process for acting on that recommendation. This should apply whether or not a court decides to impose a sanction for breach. In other words, a court could impose a sanction and recommend that future supervision conditions be changed, or impose no sanction but make a recommendation.

That brings me to the question of how we best achieve this. I have sought advice on the legal position. There is nothing in law that would stop a court making a recommendation of this sort. A magistrate or district judge could do this simply by stating their opinion about the requirements that the offender is subject to when summing up.

An explicit provision for this in the Bill would therefore be unnecessary. It could be seen as restricting the discretion of the court to make recommendations in other areas where no specific power exists. It could also mean putting in place a new specific court process for making the recommendation, rather than the relatively informal process that would occur now.

To my mind, the more important question is how we put in place a process within prison and probation services for ensuring that a court’s recommendation is acted upon by those setting supervision conditions on the Secretary of State’s behalf. There is a precedent for this. Probation and prison instructions already set out a process for cases where courts make recommendations about future licence conditions at the point of sentence. This involves probation staff present at court recording the recommendation and passing it to prison governors.

There is a presumption that governors should implement the court’s recommendation, except in cases where the offender’s circumstances have changed between sentence and release. I am happy to make a commitment that we will put in place a similar process for breach of supervision, with a similar presumption that those setting conditions should act on the court’s recommendation unless there are exceptional circumstances. To make sure that courts are aware of their ability to make recommendations to the Secretary of State, the Government will also discuss with the Sentencing Council whether it could include this in future guidance on dealing with breach of supervision.

In summary, I reassure my noble friend that he has made a persuasive case. I know he believes that it is better to get the processes right and get these things done properly at the sharp end rather than simply write things into the Bill. What I, as a layman, initially took to be a very good idea has been confirmed as such by the professional and legal advice that I have been given. I am not sure whether a Pepper v Hart judgment could be applied to what I have just said, but it is a very clear indication that we want to put the noble Lord’s very good suggestions into practical effect. I hope that I have reassured the noble Lord in that respect.

Alternative Business Structures

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 19th June 2013 Lords Chamber

[Lord McNally]

My Lords, referral fees are viewed with a certain suspicion, particularly when, as in the case of motor insurance, they were rising to about £800 a pop. That obviously fed into the cost of the insurance. After the first look, it was decided that the greatest abuse took place in motor insurance, and so we concentrated on that area. However, we will consult the regulators and consumer groups to see whether our experience of the ban should be extended to other areas.

[Lord Marks of Henley-on-Thames]

My Lords, the Solicitors Regulation Authority has approved licences for a number of alternative business structures, where claims management companies and even legal expenses insurers have joined forces with solicitors’ firms. In this way, solicitors effectively get personal injury cases in return for a commercial benefit—precisely what LASPO sought to avoid. Will the Minister make it clear to the SRA and the profession that if ABSs clearly undermine the referral fee ban, further legislation is an option?

[Lord McNally]

My Lords, more than that, LASPO already allows us to extend the powers, if necessary. We therefore want to see the evidence that is emerging. If these groupings of separate facilities and companies seem to be using means to bypass the ban on referral fees, we will revisit our powers under LASPO. I understand the concern of the House on this matter.

Offender Rehabilitation Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 11th June 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend replies, having been asked direct questions, perhaps I may reply briefly. I envisage that there would be a wide range of special reasons. As the noble Lord, Lord Ponsonby, suggested, they would include a history of breach of previous supervision requirements. However they might also encompass areas of special risk to do with the particular offender. The shortcoming of the Criminal Justice Act 2003 at which this amendment is aimed is that under Section 152 only the seriousness of the offences is taken into account. There may well be reasons to do with the offender that could justify a custodial sentence, but the point of the amendment is to make it quite clear that in the absence of such special reasons, whether they are to do with history, special risk or other reasons, the presumption in favour of a community sentence should apply.

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

My Lords, I have found this to be an extremely helpful debate, and as the movers have indicated that it is a probing amendment, I will take it away to consider, but in my reply I will make it clear that we do not think the amendment is necessary at this moment.

I understand the points that the noble and learned Lord, Lord Woolf, has quoted, and that my noble friend Lord Dholakia mentioned, that the Bill might encourage judges to go for the best of both worlds by passing a short sentence that will immediately qualify for the 12 months of rehabilitation. I certainly share my noble friend Lord Dholakia’s view that short sentences are too short to rehabilitate, but just long enough to disrupt, the life of the person sent to prison and introduce them, perhaps for the first time, to all the bad influences that can be found in a prison. On the other hand, as the noble Lord, Lord Williamson, rightly recognised, we face media and—to a certain extent—public opinion that sees community sentences as somehow softer than prison sentences. Part of the aim of our reforms is to position community sentencing and the rehabilitation process that goes with it more positively in the eyes of the public, so that they have greater confidence in it.

I was grateful for the words of the noble Lord, Lord Ponsonby of Shulbrede, in his intervention, because there are two things that become one. He put firmly on the record that in his experience, judges will not be tempted to go down the road that my noble friends fear. I think that he has said before—certainly other magistrates have—that sometimes for a repeat offender or somebody whose circumstances make setting them back into the community even more dangerous to themselves and the community, a short custodial sentence can be of benefit, so the idea of ruling them out entirely is not the way forward.

As my noble friend has explained, Amendment 24B would create a new clause in an attempt to bolster what is often referred to as the “custodial threshold”: that is, the test set out in Section 152(2) of the Criminal Justice Act 2003, to which my noble friend referred, with which all courts must comply when imposing a custodial sentence.

It is perhaps worth noting again what Section 152 says:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

It is an onerous test. It means that a court cannot impose a custodial sentence unless the offence was so serious that a fine or community sentence will not do; in fact, it cannot be justified. It is also worth noting that this test has to be read in conjunction with Section 153 of the 2003 Act. That requires a court when imposing a custodial sentence to ensure that the sentence is for the shortest term commensurate with the seriousness of the offence.

My noble friend’s amendment would add to the existing provisions a requirement, where a court intended to impose a custodial sentence of less than 12 months, that there be “special reasons” which justify the custodial sentence of less than 12 months. We have already heard in debate that magistrates and judges do not believe that they impose custodial sentences other than as a last resort. It is natural to ask what are these special reasons or circumstances that are not covered by the original test. Could the special reasons relate to a history of previous convictions? If so, the current custodial threshold test already applies because, under Section 143 of the 2003 Act, a court must consider relevant and recent convictions as an aggravating factor which makes the offence more serious. It is seriousness that is the key driver in determining the nature of the sentence and meeting the custodial threshold test.

I suggest to my noble friend that the special reasons he may have in mind must already be considered when the court decides on the sentence and whether a custodial sentence is merited under Section 152. So although of course I appreciate what my noble friend is attempting to achieve—that is, a statutory presumption against sentences of less than 12 months—I am not convinced that the amendment would actually do what is intended.

Let me make the point that the Government do not intend or expect that sentencers will change their current behaviour in any significant way in response to the provisions in the Bill. We do not expect to see an increase in the number of short custodial sentences. Offenders who do not meet the custodial threshold should receive community orders or fines. I hope that noble Lords and noble and learned Lords who have judicial experience will agree that it would be wrong for any judge, and contrary to the provisions of the existing law, if a sentencer decided to “up-tariff” an offender into custody so that they could receive 12 months of supervision.

I should also deal briefly with the second part of the amendment, which would require the court to give an explanation of the special reasons that merited a custodial sentence of less than 12 months. I point out to my noble friend that the current law already requires all courts imposing any sentence of any length to give reasons for the sentence passed. That is contained in Section 174 of the 2003 Act. Invariably, a sentencer will begin their explanation of a custodial sentence by setting out why the offence is so serious that it merits a custodial term. The further provision is, I suggest, unnecessary. I understand the good intentions behind the amendment. No one in this House wants to see short custodial sentences passed for offences that do not justify them, but that is why we have the current threshold test and a right of appeal against sentence.

We need to provide sentencers with a range of sentences in which they can have confidence. That is why we made the changes to community orders in the Crime and Courts Act 2013. We have to stop offenders reoffending to such a degree that they end up having to be considered for short custodial sentences in the first place. We also have to realise that some offenders will merit short custodial sentences. We need to focus on making those sentences more effective at rehabilitating offenders so that not only are they imposed as a last resort, they should be the last sentence that the offender receives.

I acknowledge the efforts of my noble friend on this amendment, but, although I recognise his intention, I ask him to withdraw it. Given the spirit in which it has been moved, I will discuss the matter further with the Lord Chancellor and others, but I suspect that our position as I have just set out will remain unchanged.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to my noble friend for that detailed and helpful response, and for the indication that he will consider the matter with us. The question really is whether the existing safeguards are sufficient in the light of the additional supervision requirement and whether there is ground for the concern expressed by the noble Lord, Lord Dholakia, and the noble and learned Lord, Lord Woolf, that there might be a temptation for sentencers to err. In that spirit, I withdraw the amendment at this stage.

Legal Aid

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Monday 3rd June 2013 Lords Chamber

[Lord McNally]

That is no more than the blunt truth. In 2010, when we came in, a spending review took place that asked for 23% cuts across the board in my department, which at the time was spending £10 billion a year on prisons, the probation service, legal aid, courts services and staff. All five of those have had to take the burden and brunt of the cuts. It is very difficult to make decisions at this time, but we have consulted and listened and are continuing to do so to try to make sure that we end up with a legal profession able to help the most vulnerable in our society through the legal aid fund.

[Lord Marks of Henley-on-Thames]

My Lords, I know that my noble friend is aware of the widespread view expressed during the consultation on criminal legal aid that competitive tendering on price will prove unworkable and that the proposed changes are being introduced too fast and with too little preparation. In the light of the consultation, will his department consider introducing the changes more gradually and trialling or piloting them before their more general introduction? I declare a similar interest to that declared by the noble Lord, Lord Pannick.

[Lord McNally]

My Lords, it is about 10 years since the Carter report had a look at this matter. It is more than three years since the previous Labour Government made cuts to criminal legal aid. The Labour Party, in its 2010 manifesto, was the only party to say that it would look for further cuts in legal aid. In that time there have been changes—alternative business structures and other changes—to the legal profession, yet we are still told that this has come as a surprise. Instead of asking for more time and putting forward arguments that are mainly scare stories, it would be good if the legal profession responded to this consultation with a productive dialogue that could put legal aid on a sustainable and lasting footing.

Prisons: New Prisons

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 20th March 2013 Lords Chamber

[Lord McNally]

I am aware of that scheme, although I have not had an opportunity to visit it. However, it illustrates the wisdom of the right reverend Prelate’s follow-up point: that in the environment there are many possible solutions to reoffending and for rehabilitation.

[Lord Marks of Henley-on-Thames]

My Lords, does my noble friend the Minister agree that a great deal of international experience supports the right reverend Prelate’s point? In Hong Kong, there is a new 1,400-bed women’s prison, and a large number of units in the United States. Initial evidence shows that in such prisons there are important human, behavioural and social benefits as well as the obvious financial and environmental ones.

[Lord McNally]

I agree with my noble friend. Despite what the reports say in certain sections of our media, there is a far better chance of rehabilitating people in decent and humane conditions than in antiquated and inhumane ones.

Justice: Legal Advice

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Monday 11th March 2013 Lords Chamber

[Lord McNally]

The Opposition continue to preach gloom and doom about this. They will be entitled to bring to our notice how these impacts take place, but we have put a number of measures in place to try to deal with this new situation. We have put on a new online information service, we have given Citizens Advice and other advice centres transitional money and will continue to do so, and we are looking for innovations in legal services from other parts of the legal profession. We will see what happens.

[Lord Marks of Henley-on-Thames]

My Lords—

Freedom of Information Act 2000

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 27th February 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the Government have been successful in extending the Freedom of Information Act in line with the coalition agreement by adding to the bodies which are subject to the Act and by providing for electronic data sets to be made available. Can the Minister assure the House that there will be no reversal of this process, and in particular, that there will be no extension of the Government’s power of veto and no further fees, particularly for appeals to information tribunals?

[Lord McNally]

I do not think I can give an absolute assurance on that. We decided to retain the veto following discussions that had gone on since the start of the freedom of information debate about whether, at the very heart of government, a safe space was needed for genuine discussions. At the moment, I am having discussions with colleagues about these ideas and principles and in due course I will inform the House and give it an opportunity to comment on this. It is always an interesting balance. We have faced this problem for a decade or more since we debated these principles in this House. Indeed, we had a very interesting debate a few months ago where a whole clutch of former mandarins gave their opinions about what is called the “chilling effect” of freedom of information. I do not accept that there is such a chilling effect, but I do accept that it is right—as is the proper intention of the post-legislative review of the Act—that we look at how the Act is working and we will come back with recommendations in the areas raised by my noble friend.

Damages-Based Agreements Regulations 2013

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 26th February 2013 Grand Committee

[Lord McNally]

Actually, I knew that. As Harold Wilson said when he retired and Jim Callaghan succeeded him, “I have made way for an older man”.

I take the point made by the noble Lord, Lord Phillips, but let me be blunt. I am always suspicious of Ministers who at any time rest too much on a report, no matter how learned. I do not rest the case for the 25% cap on that being Lord Justice Jackson’s original recommendation, although indeed it was. A sharp-eyed lawyer would say that the noble Lord’s quote about Lord Justice Jackson did not endorse the counterview but simply said that it had merit, which is not the same as advocating that the Government change their policy. Even if it were, this is the Government’s policy. It is the right policy because it protects the future earnings and the future cover for victims in these cases. It remains our policy on that merit, and we are willing to defend it on that basis.

I understand the point made by the noble Lord, Lord Beecham, about speed. I pointed out that very little of what we are doing is entirely new. We fully recognise that at this time there is a need for ability, nimbleness and fleetness of foot in all parts of the legal profession, if we are to take advantage of the changes that are going through. We are not persuaded that the timescales we have set are unreasonable, and we will not be deferred from the course that we have set. We have taken account of reasons for delay regarding mesothelioma and privacy, which I quoted. However, these orders will go through to take account of the fact that LASPO comes into effect on 1 April 2013.

Perhaps I might deal with a number of the specific questions that the noble Lord, Lord Beecham, raised. He was very correct to raise the issue of the American experience in DBAs. I also met the organisation that came over to present its case. I left that meeting with some of his concerns about what this might bring into our legal system. The noble Lord’s description of hedge funds for legal claims is something that we are very conscious of. What we have decided so far is to keep the matter under review. That phrase can often hide weasel words and weasel intent, but we want to see just how much this is going to become a factor in our legal system, while making sure that some of the warning signs that the noble Lord has quite legitimately raised are on the radar of Ministers as well. We will keep this matter closely under review.

The noble Lord raised the issue of VAT on the 25% cap. The 25% cap on success fees is as recommended by Lord Justice Jackson. Including VAT on the success fee on lawyers’ fees within the cap will provide further protection for the claimant’s damages and add certainty for the claimant as to the likely deduction from their damages. This approach is also consistent with the existing cap of 35%, inclusive of VAT, on payments to be made from damages in respect of DBAs in employment matters. The noble Lord also asked about the indemnity principle. DBAs are an alternative method of funding and it would be for solicitors to advise their clients on the most appropriate method of funding according to the circumstances of each case. He also mentioned there being one set of regulations. There is one set of regulations covering both civil litigation and employment cases, as recommended by the Civil Justice Council. We have listened to the concerns of the Law Society and others that there should not be too much regulation in respect of civil litigation in these instruments. This is because failure to comply with the provisions in the instruments would make the agreements unenforceable. As I have said, lawyers are properly regulated in any event.

The noble Lord asked whether the cost of ATE insurance is within or outside the 25% cap. This is an expense and is therefore outside the cap. On why DBA regulations do not contain requirements on termination for civil litigation, as in employment cases, the DBA regulations of 2010 made provisions for employment cases which can be taken forward by non-lawyers. Detailed safeguards need to be built in as a result. Civil litigation can be conducted only by lawyers, who are subject to their own professional regulations.

I think that that covers most of the issues. If not, perhaps I might say to the noble Lord that I welcome the thoroughness with which he has examined these regulations and, as I say, if I have not covered the questions in precisely the detail that I should have done I will make sure that a suitable letter is lodged in the Library of the House. I nevertheless think that the timetable that we have set, the consultation that we have undertaken and the changes that we have made after that consultation, with our having listened to the Bar Council, the Law Society and other interested parties, make the regulations fit for purpose. I therefore recommend them to the Committee.

[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend the Minister sits down, I have one question on the point made by the noble Lord, Lord Beecham, about damage-based agreements for defendants. It is my understanding of the regulations that DBAs are not appropriate for defendants, whereas conditional fee agreements are and always can be available to defendants. DBAs depend upon the damages awarded to the client or monies paid by another party to the party entering into the DBA. Clarification on that from my noble friend may be helpful, but it is certainly my understanding.

[Lord McNally]

I am grateful to my noble friend for that question. I am informed that neither the Act nor the regulations enable defendants to use DBAs, not least because a DBA is enforceable only where the agreement makes provision for the payment of the fee from damages awarded. My noble friend asks an extremely pertinent question and I hope that I have given a clear answer.

Defamation Bill

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Thursday 17th January 2013 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.

[Lord McNally]

My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.

Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.

Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.

[Lord Marks of Henley-on-Thames]

Perhaps I may correct something that I have said. My example, which was off the cuff, of Italy was wrong: it ought to be the United States or somewhere outside the Brussels and Lugano conventions.

[Lord McNally]

I was just thinking that myself, but I did not want to raise it.

Broadly, at the moment we consider it is right that these cases should be caught by the test and therefore not automatically take place in our courts. Where a claimant in a case where the defendant is domiciled outside the UK, EU or Lugano convention states is unable to satisfy a court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring the action in respect of the statement, then he or she should be refused access to our courts and should be required to seek redress abroad. Such cases are not likely to arise with any frequency but, when they do, they give rise to legitimate concerns about libel tourism which uses up the time and resources of our courts.

We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation. It is likely that in most cases where a claimant is domiciled in England and Wales the Clause 9 test will be satisfied as the main harm to reputation will have been caused here and, in those circumstances, a claimant will readily be able to show that this is the most appropriate place to bring the claim. However, claimants should not be able to use our courts to pursue libel actions which are more appropriately heard elsewhere, even if they are domiciled here.

Amendment 49 would make a small amendment to Clause 9, but would have an undesirable impact on its effectiveness. Clause 9 provides that a court does not have jurisdiction to hear and determine an action to which the clause applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

Amendment 49 would remove “clearly”. We do not believe that this would be appropriate. Great concern has been expressed in Parliament and elsewhere about libel tourism. The amendment would reduce the strength of the test to be applied by the courts and could have the effect of leading to their allowing more claims to proceed in this jurisdiction in instances where the question of whether this is the most appropriate place to bring the claim is more marginal. We believe that most people who have commented on these issues would agree with us that it is important to give a signal to the courts that Clause 9 should be applied robustly, and that claims should be allowed to proceed only where this is clearly the most appropriate jurisdiction.

Turning to Amendment 50, I understand the point made by the noble Lord, Lord Singh, about drafting. Perhaps I may say in passing that as soon as he starts speaking my mind comes to mornings when I feel tetchy, down-at-heart and at war with the world, and his mellifluous voice comes on “Thought for the Day”, and, at the end of it, I always feel a little bit better about the world. The amendment would require an organisation or individual bringing an action against a person domiciled in the United Kingdom to provide evidence that it or he has funds in the UK to meet any costs that might arise were the action to be unsuccessful. As the amendment is drafted, this would apply where both parties are domiciled in the UK as well as where only the defendant is domiciled here. This would put potential claimants with limited resources at a serious disadvantage, as has been said by a number of those who have spoken in this debate. For example, it would mean that if an individual wished to bring an action against a national newspaper based in the UK, he or she would have to show that he or she had sufficient means to pay the newspaper’s costs, which could be substantial, in the event that the action was unsuccessful. This would considerably restrict access to justice.

However, the point that the noble Lord, Lord Singh, raised and the specific examples that he gave should give us pause for thought. As with the other points made about the way in which our laws are being used, the ability of those from abroad with resources to intimidate those making legitimate criticism of their behaviour should give us pause. The noble Lord, Lord Lester, gave assurances on that matter. As always with advice from the noble Lord, I wish to take it away and consider it, and ask my advisers whether the assurances that he gave are sufficient to protect against the abuses. How we protect against the kind of threat and intimidation that comes short of reaching court, I do not know, but perhaps one of the defences is that, when the Bill becomes an Act, people will be more aware of the protections in our law against such intimidation.

We recognise the concerns that exist about the costs of defamation proceedings for both claimants and defendants, and are firmly committed to reducing them. As I have mentioned in debating earlier amendments, the provisions on costs protection which we have asked the Civil Justice Council to consider, together with changes to the Civil Procedure Rules to support early resolution of key issues, will help claimants and defendants of limited means to bring and defend claims.

I have given noble Lords an assurance that I will look at this debate and see whether we have got the balance right. I am not sure that I can give any idea that we are going to give up “clearly”; I am going to defend that to the very last. I can see us at some future date on Report voting at 11.20 pm on whether “clearly” should stay in the Bill, with the noble Lord, Lord Browne, seeing an opportune moment to defeat the Government. Until that moment, I ask noble Lords not to press their amendments.

Transforming Rehabilitation

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 9th January 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, a major contributor to reoffending in the past has been the lack of support for prisoners on release, who at present often come out with very little money, as my noble friend has pointed out, nowhere to go and usually no work to do. Will the Minister ensure that the really welcome new commitment to mentoring and support for all prisoners on release is quickly implemented, properly resourced and thoroughly monitored by government?

[Lord McNally]

Yes, I hope so. I hope that one thing that is seen as a real breakthrough in these proposals is that we will be extending support services to those sentenced to less than 12 months. As many studies have shown, those short sentences have often been the source of most reoffending. Again, to make the point that there is a more holistic approach than that, in the Crime and Courts Bill we are trying to make community sentencing more acceptable to the public by putting a kind of punishment element into them so that they are not seen as the soft option to prison. That is another part of what we are trying to do, as is involving other departments such as the DWP and those dealing with health and social services. It is clear that a more holistic approach to rehabilitation is going to get the most results.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 8th January 2013 Lords Chamber

[Lord McNally]

I notice that the noble Lord, Lord Bach, again alleged that that commitment was made. It was not made by the previous Lord Chancellor. The commitment was to examine the case for the First-tier Tribunals. As I have reported back to the House on numerous occasions, the decision was that in the circumstances it was far too expensive. It would be nice to have fatal Motions as yet another round in the legislation process, but I ask the House and the Official Opposition to think carefully. If fatal Motions are going to be used in this way, they have great repercussions, not least on our relationship with the other place.

[Lord Marks of Henley-on-Thames]

My Lords, can the Minister confirm that legal aid remains available for advice on appeal from the First-tier Tribunal to the Upper Tribunal in welfare cases? Can he also confirm that where there is a point of law on which an appellant has a reasonable prospect of success, legal aid is and will remain available for the preparation and presentation of an appeal to the Upper Tribunal?

[Lord McNally]

Yes, that is case. It is also worth making the point that some of the noises from the other side make it sound as though the Government have been totally unfeeling and refusing to listen.

Crime and Courts Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 4th December 2012 Lords Chamber

[Lord McNally]

The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.

I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.

I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.

I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.

I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.

Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.

[Lord Marks of Henley-on-Thames]

My Lords, everyone in this House knows that the commitment of the Minister to judicial diversity is very high, and I am grateful for his indication that he will consider this. I should say that I do not accept that the Equality Act deals with the position in the Supreme Court as satisfactorily as it has been suggested it might. The Bill should reflect uniformity all the way up the system. With the indication that my noble friend has given, however, I will of course withdraw the amendment and consider the matter with him between now and Third Reading.

Justice: Legal Advice

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 27th November 2012 Lords Chamber

[Lord McNally]

My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.

[Lord Marks of Henley-on-Thames]

My Lords, given that Citizens Advice has a wealth of experience in the area of social welfare law and, importantly, that it is not limited to giving legal advice but can also advise individuals in areas such as debt management, will the Government keep the funding of Citizens Advice under review to ensure that it can continue to provide its valuable and high-quality service?

[Lord McNally]

My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.

Justice: Indeterminate Sentences

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.

[Lord Marks of Henley-on-Thames]

My Lords, one of the main grounds for the judgment against the United Kingdom was that there are, as my noble friend has said, insufficient facilities for courses to enable prisoners serving IPP sentences to qualify for release. Can the Minister say what extra rehabilitation facilities are now to be put in place to ensure that such prisoners can be released safely and quickly into the community?

[Lord McNally]

My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.

Crime and Courts Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.

[Lord Marks of Henley-on-Thames]

In relation to my amendments, I understand what the Minister has said. The only point I would make is that it is possible to take the middle position, which is really the position that the noble and learned Lord, Lord Goldsmith, has put and which my noble friend has said he will look at. As the noble and learned Lord suggests, the anomaly is where you can have an all-or-nothing financial penalty that still exists, so it must be sensible to have a variable penalty if the noble Lord does not accept my Amendment 24.

Elections: Registration

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 26th October 2011 Lords Chamber

[Lord McNally]

Perhaps someone from Northern Ireland will intervene, but, again, the language is not borne out by the facts. It did not totally collapse. In this gradual process that we are bringing forward, we are learning from the examples and lessons of the Northern Ireland experience, as well as looking at some of the practices that are going on there now. Northern Ireland votes are a standard joke but we are now learning lessons about voluntary registration and its success in Northern Ireland.

[Lord Marks of Henley-on-Thames]

My Lords, the existing system, whereby householders can in theory be prosecuted for failing to return their registration forms, has not worked, largely for the simple reason that no one can tell who the responsible householder is in households with more than person. Therefore, does not individual registration offer a good opportunity at least to consider a meaningful compulsory system, and is that not important, given that the electoral register determines not just the right to vote but also the call-up for jury service?

[Lord McNally]

Those are very valid points. To put the Question of the noble Lord, Lord Bach, into perspective, I again emphasise that the annual canvass will continue to support the maintenance of the electoral register. Significant work, including public awareness campaigns by the Electoral Commission, will be funded in 2014-15 to manage the transition to individual electoral registration. In both those years, door-to-door canvassing will be used by electoral registration officers as part of a wide suite of powers to encourage people to register to vote. This is a step forward against electoral fraud. Instead of making emotional interventions, it would be good if the Labour Party would endorse it and get on with encouraging people to register.

Cohabiting: Law Commission Report

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Tuesday 6th September 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, while declaring an interest as a barrister undertaking some family work, I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, as has been confirmed in a Written Ministerial Statement, the Government do not intend to take forward the Law Commission’s recommendations for reform of the cohabitation law in this parliamentary term.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I thank the Minister for that Answer, although I confess it was disappointing. Does he nevertheless agree that it is unjust, as the slightly wider Bill of the noble Lord, Lord Lester, recognised some time ago, that cohabitants who separate, no matter how long they have lived together and even if they have children, cannot in England apply to the courts for financial relief to compensate for careers abandoned, time spent looking after children or contributions to their cohabitants’ success, and if so, is it not surely now time to implement the Law Commission’s sensible and limited scheme, which would not undermine marriage or civil partnership and which has been widely applauded by the judiciary and the family professions?

[Lord McNally]

My Lords, first, I pay tribute to the Law Commission for its work, not just on this matter but in general. I am a very firm supporter of the Law Commission and the work it does, and I know that this House has played an important role in bringing Law Commission recommendations into law. However, the Government have decided not to implement the Law Commission’s scheme in this parliamentary term, because major changes to family legal aid are being implemented next year, and further reforms of the family justice system are also on the horizon following the final report of the family justice review, which will be published in October. We do not believe it would be sensible to seek to implement further changes in the law governing cohabiting couples during this period.

Personal Injury Lawyers

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

Whether it is a matter for the OFT or the regulator is a balance of judgment. The noble Lord is right that the figures are showing a doubling. One of the factors that one must look at is the unbelievable increase in whiplash claims, about which I know the Association of British Insurers has held talks with my colleague Jonathan Djanogly. It is far too easy to find in even the most minor of accidents that subsequently whiplash is claimed, along with quite substantial damages. One of the weaknesses in the system is that the insurance companies find it easier to settle and pass on the costs to the customer than to fight these bogus claims in the courts.

[Lord Marks of Henley-on-Thames]

My Lords, does my noble friend agree that this practice of insurers charging solicitors referral fees for names is not only unethical and offensive but ensures that the claims are handled not by the most competent or well qualified solicitors but by those who are prepared to pay the most to buy the clients—thus effectively depriving their clients of their right to choose the best lawyers to handle their cases? Is that not another good reason for implementing Lord Justice Jackson’s recommendation for a ban on such fees?

[Lord McNally]

I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this “dirty little secret”, the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand—and we will respond to that demand—to ban it.

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Wednesday 23rd March 2011 Grand Committee

[Lord McNally]

My Lords, these statutory instruments are necessary to support the implementation of the Family Procedure Rules 2010, which will come into force on 6 April 2011. The Family Procedure Rules are being made as required by the Courts Act 2003, which gives power for new rules to be made for all family proceedings. This means that one unified set of procedures can be applied to all types of family proceedings in all types of courts dealing with such cases. The Courts Act provides that the rule-making power is to be exercised with a view to securing that the rules are both simple and simply expressed.

The Ministry of Justice and the Family Procedure Rule Committee—the body established to make the rules—have developed a set of rules to cover all family proceedings in the High Court, the county court and the family proceedings court. The new rules will bring a number of benefits, including modernisation of some language, a single unified code of practice for all family courts and, where appropriate, harmonisation of the procedure in family proceedings with the provisions of the Civil Procedure Rules. In fact, the approach followed in the Family Procedure Rules is already being applied to adoption proceedings. The Family Procedure (Adoption) Rules 2005 used the new approach to support those proceedings. When the new Family Procedure Rules come into force on 6 April 2011, they will help fulfil the Government’s intention that the new approach should be extended to all family proceedings.

The two instruments we are considering today are critical to the operation of the new Family Procedure Rules. They ensure that the new rules will operate as intended, and that other enactments will refer appropriately to those rules. I hope that the Committee will support their approval. I will take each instrument in turn.

The Family Procedure (Modification of Enactments) Order 2011 makes amendments to other legislation in consequence of the coming into force of the Family Procedure Rules. For example, Article 6(b) of the order inserts a new subsection (3) into Section 54 of the Magistrates’ Courts Act 1980. That new subsection provides:

“In family proceedings a magistrates’ court may stay the whole or part of any proceedings or order either generally or until a specified date or event.”

This gives magistrates' courts the same power to stay—in effect, halt—proceedings that the High Court and county courts already have. As a result, the procedural rules referring to such stays in the Family Procedure Rules can apply to all courts dealing with family proceedings. The order also amends various enactments which currently refer to rules which are to be superseded by the Family Procedure Rules 2010. This means that, from 6 April 2011, those enactments will refer to the 2010 Rules or to specific provisions within them.

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011—the destination of appeals order, as it is known to its friends—makes various minor amendments to the routes of appeal. It provides that appeals from decisions made by a district judge of a county court will lie to a judge of that court and that appeals from decisions made by a district judge of the High Court, a district judge of the principal registry of the Family Division or a costs judge will lie to a judge of the High Court. It puts in place provisions in existing rules regarding the destination of appeals from a district judge which would otherwise be lost as those rules are replaced by the Family Procedure Rules. The new destination of appeals order consolidates these provisions with the provisions from an existing destination of appeals order, so that the routes of appeal in family proceedings are dealt with in one place. This is in line with our policy of simplifying the way in which rules for family proceedings are presented. Part 30, “Appeals”, of the practice direction that supplements the Family Procedure Rules sets out all the routes of appeal and the practice steps that people will need to take, which will provide considerable assistance to a person who wants to appeal against a court’s decision.

These orders have already been debated in the other place and have been approved. Members were generally supportive of the Family Procedure Rules and approved these provisions which support the implementation of those rules. The two statutory instruments are important to make it possible for the new Family Procedure Rules to operate as intended, and to ensure that other legislation is properly amended in consequence of the coming into force of those rules. The rules will bring considerable benefits to people involved in family proceedings. I hope that noble Lords will approve these two draft orders so that the benefits of the new rules can be fully achieved.

[Lord Marks of Henley-on-Thames]

My Lords, we plainly welcome the move towards uniformity of procedures among the High Court, the county court and the magistrates’ court and the move to a single code of practice and harmonisation where possible, although it is not always completely possible, between family proceedings and other civil proceedings under the CPR. I particularly welcome the provisions that will give magistrates’ courts the power to stay proceedings and to make orders for costs in a way that they have not been able to do so in the past.

Also of considerable importance is the move to give magistrates’ courts the power to make an order of disclosure against non-parties. The lack of such a provision for the magistrates’ courts has been, and is, capable of giving rise to delay. When witnesses turn up, the documents are not in court and there has to be an adjournment in order for them to be obtained. For that provision to be effective, it should be borne in mind that the burden is on solicitors and litigants to ensure that they use the order and the provision by applying for orders for the production of documents in good time so that, when matters come for a hearing, all the documents are before the court.

The destination of appeals order is also extremely helpful in dividing appeals from the junior judges in the High Court to High Court judges from appeals from junior judges in the county courts to county court judges. However, one further point that I would make, which is a matter for listing officers rather than for the legislation, is that those of us who practise in family proceedings will well know that we have extremely experienced district judges at both levels, but we also have a number of rather less experienced deputy High Court judges and deputy county circuit judges sitting as circuit judges. It is a matter of importance that we do not list appeals from very experienced district judges before very much less experienced deputies at the senior level. That is not a point for the order, but it is a point of some importance in practice.

Justice: Judicial Appointments

Debate between Lord Marks of Henley-on-Thames and Lord McNally

Thursday 17th March 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what progress is being made in improving gender and ethnic diversity in judicial appointments.

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

My Lords, in February 2010, the independent advisory panel on judicial diversity published its report, which detailed a number of recommendations to deliver speedier and sustained progress to a more diverse judiciary without diminishing appointments on merit. In response, the judicial diversity taskforce was established to oversee the assessment and implementation of those recommendations. The taskforce met last Monday to review what has been achieved to date, and will publish its report on progress shortly.

[Lord Marks of Henley-on-Thames]

My Lords, I thank my noble friend for his helpful Answer, but given the lamentably low number of women judges and the virtual absence of ethnic minority judges among our senior judiciary, which bears a very poor comparison with those of other European and other common law jurisdictions, does he agree that it is time for urgent and effective action and that all necessary steps should be taken to ensure that the recommendations of the taskforce that he mentioned, set up as a result of the recommendations of the advisory panel chaired last year by my noble friend Lady Neuberger, are implemented in full and without delay?

[Lord McNally]

My noble friend makes a correct assessment of the figures for judicial appointments. The meeting last Monday was my first with the diversity group, and I made it very clear that as far as I am concerned, the concept of trickle-up is not a response to the diversity problem that we face in the judiciary.