Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011
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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.
Lord Bach
My Lords, I thank noble Lords who have spoken in the debate and I congratulate the Minister for the succinct way in which he put these orders. It is not always easy to put orders before the Committee so succinctly, but he has managed it with great élan this afternoon. It is very good to have the noble Lord, Lord Marks of Henley-on-Thames, with his experience of the family courts, joining in the debate even on fairly uncontested orders. His experience will be very valuable to the House. I am also grateful to my noble friend Lord Jones for his staunch defence of the magistracy and the detailed questions that he asked about the orders. Let me say straight away that we do not oppose the orders at all; indeed, they seem to demand support and to make sense. As I understand it, they had general support from the other place and from the outside world.
The whole area of family law policy is being examined by the Norgrove committee as we speak, of course. We began that in government and the present Government have wisely carried it on. It is an important committee; we look forward very much to its report and the Government’s decisions on that report. Some of us feel that our family law needs to be brought up to present times and that many changes could usefully be made, but that is not the issue for today. These orders deal with procedure and rules and are a vital and much respected part of our legal system, which is widely—and rightly—admired elsewhere. Our procedures and rules must be known, exact and kept up to date; these orders certainly do that.
There is an interesting argument around family proceedings courts in the magistrates’ courts. I understand that the orders give the equivalent power to those courts as they do to the county court and the High Court. That is no doubt a good thing, but will the more serious cases still go to either the county court or, if they are even more serious, the High Court? I am sure that it is still the position; it ought to be, and I would not want any change to it.
My query is about Article 38 in the Family Procedure (Modification of Enactments) Order. This is not a trick question, and the noble Lord is welcome to answer at his leisure if he wants. The Explanatory Note states that:
“The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts”.
Do I take it that, where that issue has arisen until now, the family proceedings court has not been seen fit to be an appropriate venue or forum for those cases? Obviously, the cases are made more difficult if someone lacks mental capacity within the meaning of the Act. Is it really appropriate that those cases be heard in the family proceedings court?
Apart from that, we support the orders and are grateful to the Minister.
Lord McNally
My Lords, the House is extremely generous in its comments about my command of the subject. I am not a lawyer, so I feel like a lion in a den of Daniels when I look round and see the contributors. I am grateful for the comment of the noble Lord, Lord Bach, about the Norgrove review. We hope that Mr Norgrove will give an interim report in March and his final report in the autumn. I agree with the noble Lord that it will be a useful opportunity to review family law.
I also agree that we will be well aided in that review by the presence of my noble friend Lord Marks, who has already made his impact both in the Chamber and here in the Moses Room. His contribution today might be better read by the practitioners than by the House, in that he said that due notice for documents required would speed up and simplify processes. In looking at our criminal justice system over the last 10 months in my limited experience, I have frequently been amazed at how easy it is to disrupt the smooth running of the system. I hope that we can make the system work more efficiently. I am sure that his fellow practitioners will duly note his opinion about the value of the experienced district judges compared with others.
The noble Lord, Lord Jones, asked whether the destination of appeals order will apply to appeals from district judge magistrates’ courts, and whether magistrates’ courts have been consulted. The draft order relates to family proceedings in the High Court and county court only and does not apply to magistrates’ courts. On the wider issue that he raised, both the Magistrates’ Association and the magistrates’ clerks body responded to the consultation and were fully consulted. The draft destination of appeals order applies to all family proceedings, including adoption proceeding, and revokes the 2005 destination of appeals order. If that does not cover the points raised, I will gladly find out more.
The noble Lord, Lord Jones, widened his remarks a little more to ask about the magistracy. That gives me an opportunity to say that we have carried out a rationalisation of the number of magistrates’ courts. I believe that we have retained the essential strength of magistrates’ courts and of the magistracy, which is their localism. This is the 650th anniversary of the magistracy, which we will be celebrating later this year in Westminster Hall. On the attitude of the Ministry of Justice, my right honourable friend the Lord Chancellor is certainly looking very actively at how magistrates can be given more work—not less—and take on more responsibilities. We will be looking at that in various pieces of legislation later in the year.
Regarding the query on Article 38, prior to the coming into force of the Family Procedure Rules 2010, magistrates’ courts did not have the power to appoint such representatives. Only the High Court and county courts had such powers. However, under the 2010 Rules, magistrates’ courts will be able to do so. Therefore, the fact that a person lacks capacity will not require a transfer of proceedings so that a representative can be appointed. It follows that it is appropriate to omit sub-paragraph (h) from Article 15(1) of the Allocation and Transfer of Proceedings Order 2008. The Family Procedure Rule Committee considers that it is appropriate that magistrates’ courts should have these powers to avoid unnecessary transfers. However, complex cases can still be transferred in accordance with the allocation order. I have taken note of the concern that the noble Lord, Lord Bach, raised, which I hope is covered by that assurance about complex cases.
I hope that my response has covered the points that were raised during the debate—if it does not, perhaps colleagues would remind me. Like others who have spoken, I think that the order provides for a welcome consolidation of the courts and a welcome increase in responsibility for the magistrates’ courts, and I hope that, as in the other place, we can adopt these measures.
Family Procedure (Modification of Enactments) Order 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Family Procedure (Modification of Enactments) Order 2011.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments
Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011.
Relevant documents: 16th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, never underestimate the value of the Whip because, but for the intervention of my noble friend Lady Northover, I would have been well into this speech and would not have moved the Motion on the previous order. I am most grateful to her.
Lord McNally
The draft order before us today amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. Specifically, the order brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales—CAFCASS Cymru—into line with those of its counterparts in England.
The purpose of the draft order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that to do so would be likely to prejudice the conduct of social work by causing serious mental or physical harm to the individual or a third party. As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use this partial exemption when replying to requests for personal data made under Section 7 of the Data Protection Act 1998. In 2000, when the DPA came into force, the Government brought forward such an exemption by order, which could be relied upon where the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party.
I should explain that, even without this exemption, in certain situations data controllers may be able to rely on the principle that information shared with a social worker was given in confidence. Therefore, it might not be fair, or even lawful, to release the information, as to do so would be in contravention of the first data protection principle in the DPA. However, the social work exemption in the 2000 order gave a strong, certain and very explicit legal basis to withhold information and ensure that social work is not prejudiced. The schedule to the 2000 order listed those organisations and functions to which the exemption could be applied. This important exemption—the subject of our debate today—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively.
With that background in mind, I will turn to the reason for the order before us today. In 2005 an order was approved by Parliament which added certain functions of CAFCASS in addition to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As Members will know, CAFCASS works with children and their families who are involved in family proceedings, and advises the courts on what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include where parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information related to social work.
On 1 April 2005, the functions of CAFCASS in Wales were devolved to the Welsh Assembly, making CAFCASS in Wales—CAFCASS Cymru—a separate organisation to that of CAFCASS in England. Unfortunately, this was not taken into account at the time of the 2005 order, and therefore CAFCASS Cymru has not been able to apply this exemption, although its counterpart in England has. As a result, the intention behind the 2005 order that this exemption should apply across England and Wales, as agreed by Parliament, has not been fulfilled. It is important that this inconsistency in the subject access regime between England and Wales is rectified and that CAFCASS Cymru is able to use this exemption as was originally intended.
CAFCASS Cymru has told us that, between 2007 and 2009, there were 23 cases where it would have considered using this exemption, had it been available. In these cases, CAFCASS Cymru relied on the principle, mentioned at the start of my remarks, that there would have been a reasonable expectation that information that children share with a family court adviser would remain confidential and therefore would not disclose the information because it could give rise to an actionable breach of confidence. However, this approach has not been tested, either by the courts or by the Information Commissioner. The extension of this exemption to cover CAFCASS Cymru will provide it with parity and will ensure a stronger, more certain and explicit legal basis to withhold information if CAFCASS Cymru considered that this would be likely to prejudice the carrying out of social work, by causing serious harm to the physical or mental health of a child.
I want to emphasise here that the Government take the issue of individuals’ rights to access their personal data very seriously. Just as we have made clear our commitment to transparency in terms of public data and official information, we are also committed to upholding people’s rights to see what information is being processed about them in both public and private sectors. Indeed, the Ministry of Justice’s recent call for evidence sought views on how the current subject access regime is working. Responses to this confirmed that individuals see this as an important right and that data controllers by and large take their responsibilities in this area seriously. But there can be no doubt that in certain, specific circumstances, such as those we are considering today, releasing information may not be in the interest of an individual, or indeed of others, including the children of the individual concerned, or those involved in protecting them.
I should make clear to noble Lords that a right of appeal remains for those individuals who believe that a subject access request has not been complied with fully. As with any subject access request, there is a right of appeal through the courts under Section 7(9) of the Data Protection Act. Alternatively, individuals may approach the Information Commissioner, who may investigate whether the data controller has complied with the obligations under the Act. In addition, this order, should it be agreed, will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of “relevant persons” in the 2000 social work order, as is the case with CAFCASS in England.
Section 7 of the Data Protection Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person or assess the reasonableness of disclosure before giving out the data. However, the personal data of a “relevant person”, as defined by the 2000 order, is not subject to these conditions of consent or reasonableness. This means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if this is required to provide the data subject with personal data under the terms of a subject access request. Consent and the reasonableness test are not factors in the disclosure.
A concern was raised in another place about how relevant persons will be protected from harm by having to release their personal data to others. It is important to remember that this draft order would allow CAFCASS Cymru to withhold information if social work was to be prejudiced by causing harm to the individual or any third party. This could include those who work for CAFCASS Cymru. CAFCASS in England, which must already adhere to this when replying to subject access requests, has told us that it is not aware of any harm caused to employees. In all cases so far it is only the name of the employee that has been released and it is highly unlikely that the individual making the request will not already know the name of that person—most likely to be a social worker—who has been dealing with their case. As such, it would probably raise more suspicion if the name of the employee in question was redacted and therefore the name is almost always released. Officials in CAFCASS Cymru have said that their approach would be similar to that of CAFCASS in England. Again, this provision would bring CAFCASS Cymru into line with CAFCASS in England to ensure consistency in the two bodies' approach to releasing personal data.
The principles about the need to maintain a strong subject access regime while protecting individuals were agreed by all parties in 2005 and these principles still hold firm. In any case, there is no reason why they should apply in England but not in Wales. Including CAFCASS Cymru in the list of organisations able to apply the exemption will not only protect individuals and ensure that social work can be carried out effectively; it will also ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend this draft order to the Committee.
Lord Thomas of Gresford
My Lords, I would not necessarily agree to the principle that something that applies in England must necessarily apply in Wales. That is the whole point of devolution, which I am sure that the noble Lord has foremost in his mind. However, I support this provision.
The noble Lord referred to the call for evidence. He made a statement in July 2010 about the call for evidence, which he said was to be,
“assessed and used to inform the UK’s position in negotiations on a new EU instrument for data protection, which are expected to begin in early 2011”.
He also said that there would be a,
“Post-Implementation Review of the DPA, with a view to publishing a full impact assessment by the end of the year”.
Have those time limits been complied with? I was not able to find anything to indicate that they had. What is the position in relation to the negotiations with the EU for a new instrument in this field?
Lord Bach
My Lords, I thank the Minister again for explaining these orders—perhaps not quite as succinctly as in the previous case, but I understand why—and I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the point that he has raised.
Of course, whenever exemptions are made to data protection regarding people’s fundamental right to know what data are held about them, how those data are used and what safeguarding processes there are, it is right that they should be very carefully examined. This order has been examined very carefully in another place and I have read the transcript of those proceedings. On that occasion, the matter was tested by a number of questions, particularly about the frequency of exemption already in place for England. However, Members of the other place were content and satisfied with the answers that were given; in my view, we should also be content with the order and with the way in which the Minister has outlined the order today.
There are occasions when it is not just right but important that exemptions are made to the normal rights under data protection legislation. That is common sense and is appropriate. What makes the exemption satisfactory is that, first, there is a right of appeal, which is very important in our view. Secondly, it is absolutely right that social workers, who are not very well paid but who do a pretty demanding job that is absolutely crucial and much underrated by the rest of society, should get the protection that they deserve, and anything that can make their difficult task easier should be done by Parliament, if possible. I believe that that is what these exemptions have done so far in England and will now do in Wales. Our view is that this order is sensible, reasonable and absolutely appropriate.
Lord McNally
My Lords, I am sorry that my explanation of this instrument was succinct. I turned over in my mind whether to adopt the attitude exemplified by my noble friend Lord Sassoon and the noble Lord, Lord Davies, in the earlier debate by reducing the issue to some party barn-storming by announcing that this was the coalition cleaning up a mess left by the previous Government, but I have been around this place long enough to know that we will probably make similar mistakes in legislation.
Lord McNally
This just shows how these matters are dealt with in the justice system. I also note that, as one QC eased himself out of the Benches, another QC eased himself in. I deal with these matters with great trepidation.
On our call for evidence, the preliminary result was published in January of this year and I shall ensure that my noble friend receives a copy. We are undertaking an interesting exercise in trying to future-proof as much as we can the whole of data protection. The call for evidence will be extremely useful in making what we hope will be a positive contribution to the review of the European directive. The capacity of data protection of the exchange of data has changed dramatically, even in this still young century. Therefore, the need to take a new look at data protection is extremely timely. We shall be making a contribution to the review going on in Europe and we shall also review exemptions and applications under the Data Protection Act as part of that process.
Perhaps I might associate myself with the points made by the noble Lord, Lord Bach. One was that it is important that there should be a right to access data. Successive Governments have now been committed to greater transparency, but there have to be safeguards along with that. I also therefore associate myself very much with his tribute to social workers—a group sometimes quite outrageously pilloried in our popular press—who carry out extremely difficult responsibilities on behalf of our whole society. If they are to carry out such responsibilities, the kind of protection that this order provides for them is no more than they deserve. Certainly, in this case it should apply both in England and Wales.
Justice: Judicial Appointments
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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.
Baroness Kennedy of The Shaws
Given the nature of the issue, I think that giving way was appropriate.
I remember that when I started at the Bar there were sets of chambers that used to say, “We don't take women”. We then made a great advance where chambers would say, “Women? We've got one”. We now have one woman in the Supreme Court. That has been the situation for seven years. It is not good enough. What is being done? There are four wonderful women in the Court of Appeal. Why is not one of them, such as Dame Mary Arden, being promoted to our Supreme Court?
Lord McNally
My Lords, I understand that there are two imminent vacancies to the Supreme Court. I am sure that everyone will be watching as to what happens with those appointments. The noble Baroness touches on another point. The professions themselves— the Bar, the Bar Council, the Law Society and their members—should show leadership in encouraging more women into the legal profession.
Baroness Prashar
My Lords, does the Minister agree that the establishment of the Judicial Appointments Commission acted like a litmus paper in highlighting the barriers which impede progress in this area? Does he further agree that more concerted action is needed by the Ministry of Justice, the judiciary and the professions in order to make a difference?
Lord McNally
I most certainly agree with the noble Baroness and I pay tribute to her contribution to making the Judicial Appointments Commission so valuable. I recently met the new chairman, Mr Christopher Stephens. As well as many other attributes, he is the son of a former Clerk of the Parliaments, which should reassure this House.
Lord Morris of Aberavon
My Lords, while giving every welcome to the much needed improvements in diversity over recent years, will the Minister ensure that, in the pursuit of these very proper and important aims, quality and merit will never be sacrificed by those who are responsible for appointments? Further, does the Minister agree that all these aims, including quality and merit, should apply to those who are responsible for the appointment of Queen’s Counsel as well?
Lord McNally
I hear what the noble and learned Lord said. I can only say that 30 years ago when I was in government in the Foreign Office, women advisers were a rarity at any meeting. Returning to government 30 years later, I quite often sit in meetings where the majority of my advisers are able and talented women. I wonder why the legal profession has not made the same progress in the past 30 years as has been made in public appointments. I suspect that, perhaps not intentionally, the idea of quality and suitability is embedded in the thought “people like us”.
Baroness Falkner of Margravine
Does the noble Lord agree that the previous question implied that women and ethnic minorities possibly do not have the merit or the suitable qualifications, which should not be allowed to stand? Will he tell the House whether the judicial appointments review will set targets? If that other bastion of male privilege, the City of London, can have targets, is it not time that the senior judiciary did as well?
Lord McNally
I think that targetry would be the wrong approach but it is worth remembering the figures. Just over 20 per cent of our judges are women. Even in the magistracy under 8 per cent represent black and ethnic minorities. I understand selection on merit but there are still signs of old selection prejudices that produce these appalling figures. They have to be broken into.
Baroness Scotland of Asthal
My Lords, I declare an interest as a deputy High Court judge of the Family Division. The noble Lord will know that that appointment was a very long time ago and that the opportunity to be a deputy is very important. Will the noble Lord tell me how many other ethnic minority women of some quality are now appointed in relation to the deputy’s role?
Lord McNally
My Lords, I do not have the figures here, but I will write to the noble and learned Baroness. Let me say this about quality. This is not an attack on our judiciary. One of my other responsibilities is as deputy to the Lord Chancellor in his international role. Time and time again, we find ourselves in areas where the judiciary is corrupt and the justice system deeply flawed. I pay tribute to the quality of our judiciary, but I must say that, when the figures show that it is 80 per cent male, we are wasting half our talent. Other professions have shown the ability to change. It is time for the legal profession to change as well.
Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2011.
Relevant document: 16th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the regulations concern the use of emblems on ballot papers by candidates at local authority mayoral elections in England and Wales. Their purpose is to make the changes necessary to address an oversight that has arisen in the drafting of the existing regulations governing the conduct of local mayoral elections.
The changes being considered today will enable a candidate who is standing on behalf of two or more registered political parties at such an election to request that the ballot paper should feature, alongside the candidate’s particulars, an emblem registered by one of those political parties. I understand that a number of local mayoral elections are scheduled to take place in England in May 2011—I think that the number is five. The regulations will ensure that the issue is addressed ahead of those elections.
Under Section 29 of the Political Parties, Elections and Referendums Act 2000, a political party registered with the Electoral Commission may register with the commission up to three emblems for use on ballot papers by candidates standing for the party at elections. Electoral law is clear that a candidate standing on behalf of a single party may request that an emblem registered by that party appear on the ballot paper against the candidate’s particulars.
However, at the May 2010 general election, it came to light that amendments to the parliamentary election rules set out in Schedule 1 to the Representation of the People Act 1983 made by the Electoral Administration Act 2006 had had the unintended effect of preventing candidates standing on behalf of two or more registered political parties at UK parliamentary elections using on the ballot paper a party emblem registered by one of those parties.
This has affected jointly nominated candidates who have wanted a party emblem on their ballot paper, most notably those wishing to stand for the Labour Party and the Co-operative Party, and the Ulster Unionist Party and the Northern Ireland branch of the Conservative Party, where candidates have stood under the description, “Ulster Conservatives and Unionists – New Force”. I should perhaps pre-empt any comments from the other side by saying that, as far as I know, these are the only two examples of political parties planning joint candidatures in the future.
These provisions have been replicated in the rules governing the conduct of various other elections. These include the rules for the conduct of local mayoral elections in England and Wales as set out in the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. Schedule 1 to those regulations contains the rules for a stand-alone local mayoral election and Schedule 3 sets out the rules where a local mayoral election is combined with another poll. As a result, there is now an inconsistency in the use of registered emblems on ballot papers at local mayoral elections by candidates standing on behalf of a single party and those standing on behalf of more than one party. The draft regulations we are considering today address this inconsistency, which has resulted from an oversight in the 2007 regulations. As I have explained, these regulations are being made to address the issue ahead of the local mayoral elections scheduled for the 5 May. It might be helpful if I briefly explain the changes made by the regulations.
The issue arises in the context of the 2007 regulations. Rule 18(4) in Schedules 1 and 3—about candidates using an emblem on the ballot paper—makes reference only to Rule 7(1), which concerns the nomination paper for a candidate standing for a single party. To address the situation, Regulation 2 of the draft regulations before us inserts new Rule 18(4A) in Schedules 1 and 3. It refers to Rule 7(3), concerning the nomination paper for a candidate standing for more than one party. Further, Regulation 2 amends Rule 18(5) in each schedule so that it refers to paragraphs (4) and (4A) of Rule 18. The effect of these changes is that it will be possible for a candidate who is authorised to stand on behalf of more than one party at a local authority mayoral election in England and Wales to use an emblem registered with the Electoral Commission by one of those political parties, if they wish to do so.
The draft regulations allow such a candidate to use one emblem only on the ballot paper, which must be an emblem registered with the Electoral Commission by one of the parties for which they are standing. Our approach maintains the current policy that candidates nominated by a political party may have only one emblem featured against their details on the ballot paper. A candidate’s request to use an emblem must be made in writing to the returning officer before the deadline for the delivery of nomination papers, which is noon on the 19th day before the day of the election. For the local mayoral elections on 5 May, this is noon on Monday, 4 April.
The Electoral Commission and the Association of Electoral Administrators highlighted this issue in their reports on the May 2010 election. The political parties have also raised this issue with us. There is a broad consensus that the issue should be addressed at an early opportunity and in time for the elections scheduled to take place in May of this year. I can confirm that the Electoral Commission was formally consulted on these regulations and has indicated that it is content with the changes being made to the 2007 regulations. The same issue was replicated in the separate rules governing the conduct of other elections. We are addressing the issue in the relevant legislation for the other elections scheduled for 5 May. It will require primary legislation to address the issue for a UK parliamentary election, and we will look for an opportunity to do this in advance of the next general election.
These regulations make a sensible and appropriate change to put right an oversight in the drafting of the existing rules governing the conduct of local authority mayoral elections to allow the use of emblems on ballot papers by candidates nominated by two or more parties at those elections. In that spirit, I commend them to the Committee.
Lord Tyler
My Lords, I hope not to detain the Grand Committee for more than a few minutes. Before I come to specifics of the regulations that my noble friend introduced, would he comment on the report I read today? It said that Ministers and departments are under strict instruction, under the deregulation initiative or in/out process, that every time a new directive or regulation is introduced, one should also be abolished or repealed. If that is the case, I hope that we will, in future, get a brief description of what will be repealed to enable the new regulation to be introduced. Obviously, this is a very helpful and entirely desirable improvement to the situation, and I commend my noble friend for introducing it—in a totally non-partisan spirit, because I anticipate that the main advantage will be to the opposition party. I hope that the noble Baroness will acknowledge that on this occasion at least there is no ignoble partisan initiative or motive behind this, because clearly the primary benefit will be for Labour and Co-operative candidates. I know that there is a long tradition of them working together, and I hope that this will be accepted as an extremely helpful and consistent implementation of a principle that has been accepted in other parts of the electoral law.
I have three specific questions. As I understand it, it will now be possible for candidates standing for more than one party to have exactly the same opportunities for the use of an emblem on the ballot paper as those who are standing for a single party. However, it is a standing policy of all Governments that there should always be one emblem. The idea of combined emblems will provide a very interesting design objective in some circumstances. Whether the red rose is sometimes painted green—or there may be other opportunities for amalgamation—it will be a challenge to all designers. But there is also a problem of definition. I imagine that bringing together two emblems in a way that apparently creates a combined emblem will not be entirely easy to distinguish from two emblems separately put on the ballot paper. That is something that all Ministers in all Governments have rightly sought to resist as, once you open to door to that, you could have multi-emblems attempting to get on the ballot paper and more space being required—or else they would be too small to be legible. Is my noble friend entirely satisfied that the regulation will prevent what would otherwise look like two emblems being rather loosely combined? That may seem a small design problem, but it could turn out to cause difficulties.
Secondly, and relating to that, we are approaching the noon deadline on Monday 4 April at considerable speed. The consultation on this issue took place immediately after the 2010 election, both with the Electoral Commission—and I have declared an interest as having a minor role on an informal advisory group for the commission—and more widely. It is unfortunate that the elections for mayors in Bedford, Middlesbrough, Mansfield, Torbay and Leicester, where they must now already be starting their campaigns, have not been briefly and appropriately informed of the change. I have no idea whether there are candidates in any of those five locations who intend to stand on behalf of more than one party, but we are near the deadline and I hope that some attempt has been made to inform people in those areas, the political parties and those responsible for electoral administration, that this proposal was coming forward.
Thirdly, in his introduction, my noble friend referred to the fact that in due course primary legislation would be required for UK parliamentary elections. Can he tell the Grand Committee whether this is yet another candidate for the so-called “Christmas tree Bill”? That is rather an unfortunate description; it might be more properly described as the “Odds and Sods Constitutional Reform Bill”, because I know that a number of different proposals are likely to be contained in it. If it is, how soon may we expect to see that Bill? To adopt more parliamentary language, perhaps it could be called a portmanteau Bill. Either way, it is obviously important that the parties are given due notice that proposals will be brought forward as soon as time is available to deal with the bigger issue of the 2015 general election. As my noble friend has said, it is extremely important that we have total consistency so that the political parties, candidates and agents, as well as those responsible for electoral administration, have clear guidance that there will be a consistent approach right across the board.
Very briefly, since we are dealing with mayoral elections, I hope that my noble friend will be able to confirm that some of the issues arising over how executive mayors have been introduced into this country over the past 10 years are being reviewed in preparation for the Localism Bill, which is already under consideration in the other place. There are important problems that arise from that legislation, not least the fact that financial decisions are incredibly controversial when they are made by an elected mayor, because he or she can introduce a budget when two thirds of a council votes against it. There is also the issue of special responsibility allowances, which give the elected mayor huge patronage opportunities.
Obviously, this afternoon is not the opportunity to discuss these issues. However, I hope my noble friend will acknowledge that we cannot completely detach the issue of mayoral elections from wider concerns about the way in which the system is working, after a long period where it has caused some controversy in different parts of the country. When we come to the Localism Bill shortly, I hope that we will be able to address these.
I think my noble friend and his colleagues in the coalition Government have introduced some very sensible and, some might say, rather latter-day improvements to the system. They are correcting an inconsistency, a discrepancy that unfortunately managed to find its way into the previous basis for the identification of candidates on the ballot paper. I very much support and welcome the order before us.
Lord McNally
My Lords, having desisted from drawing the attention of the Committee to the fact that we are yet again clearing up a mess left by the previous Administration, I was disappointed that the noble Baroness could not resist making the suggestion that this might be legislation for the coalition partners. I thought that I had pre-empted that. As has been clearly stated by both parties, there is no intention of putting forward joint candidates. We will be fighting the next election in May 2015, Parliament permitting the legislation, as separate and distinct parties. I believe that the noble Baroness really knows that.
I was interested in the comments made by the noble Baroness, Lady Golding. If she were on the committee, we have the guilty woman with us today. She made an important point about how, with the best of intentions, this kind of legislation came about. I remember the by-election in which the guy stood as the Literal Party candidate, while at the Hillhead by-election one of the candidates changed his name to Roy Jenkins in order to confuse. I am therefore well aware that the origins of this legislation were, rightly, to try to prevent the electorate from being confused, deliberately or otherwise, and to clarify the rules around the candidature.
On whether two or more emblems should be allowed, it is a matter of judgment. If we say one or two, someone will ask, “Why not three?”. The general principle of the legislation is that there should be a level playing field for candidates. It is therefore right that candidates standing for a political party may use one emblem only on the ballot paper. I am quite sure that if at some stage somebody wanted to amend a piece of legislation, Parliament would consider it, but I suspect that we would return to the balanced view in the original legislation—that the best level playing field is to have one emblem. As long as the emblem chosen can be cleared by the Electoral Commission, it could possibly be a hybrid of the two, but I suspect that it would make sense to have just the one emblem.
Certainly, I was not saying that this is just for the Labour and Co-op parties, although the noble Baroness is right that the title “Labour and Co-op candidate” has a proud history in British politics. The redoubtable Alf Morris fought all his elections as a Labour and Co-op candidate in my neighbouring constituency of Manchester Wythenshawe when I was in the other place.
Of course, emblems have changed from time to time. I remember the Labour Party as a torch rather than a red rose. I cannot remember what the Conservative Party emblem was before the tree. Was it as torch as well? The torch obviously went out of fashion.
I was also asked whether the mayoral candidates had been informed. The political parties were consulted about these plans. Indeed, I am told—and this shows that the Labour and Co-op party machines are on their toes—that they actually approached the Cabinet Office to seek clarification. I will not say that things have changed since my day, but I was impressed by that.
I was also asked when the point about the general election would be addressed. My honourable friend Mark Harper was more daring than my brief in that he suggested that the individual electoral registration Bill might be a suitable vehicle. I do not know whether that would be the case or whether the suggestion made by my noble friend Lord Tyler of a portmanteau Bill would be better. However, I take on board the point made about the by-election. One of the things that we will take from this debate is that there might be a sense of urgency rather than simply thinking that it is a matter for 2014 or 2015. Certainly, the Government’s intention is to address the issue.
On the question of the merits and demerits of elected mayors, although the regulations are about elected mayors, we will have to leave the debate that my noble friend Lord Tyler tried to tempt me into to our consideration of the Localism Bill, if that is where it will be. I do not know whether these regulations are covered by the in/out commitment. I do not know whether the rules are quite so rigid when we are carrying out a tidying-up exercise such as this.
On the question of where the missing minutes are, I can assure the noble Baroness, Lady Golding, that I will try to find out. I am also the Minister responsible for the National Archives. Missing minutes are very important, particularly minutes on an issue of such interest. Perhaps the officials responsible for this cock-up in the first place have stolen the minutes. I am grateful to all those who have contributed to this debate and I commend the regulations.
Public Bodies Bill [HL]
Lord McNally Excerpts(15 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful for the questions asked by the noble Lord, Lord Bach, about the Victims’ Advisory Panel. Let us be quite clear: the Victims’ Advisory Panel is not a body that gives help to victims. It does what it says on the tin: it is an advisory panel. It was established in 2003 and is a statutory, advisory, non-departmental public body, established to enable victims of crime to have their say in the reform of the criminal justice system. This is not a cost-driven proposal, although the abolition of the panel will save up to £50,000 a year.
The point made by the noble Lord, Lord Bach, is valid: that the appointment of the Victims’ Commissioner, Louise Casey, has changed the priorities and many of the things that the Victims’ Advisory Panel aimed to do have now been overtaken by the Victims’ Commissioner. Since her appointment, the Victims’ Commissioner and her team have regularly met victims in the course of their work; they have met more than 300 groups and individuals since May 2010. The Victims’ Commissioner has organised workshops and focus groups with victims of crime, organisations that represent victims and their families and organisations that provide services to victims. She and her team have also held specialist meetings with young people who have been affected by crime and carried out in-depth telephone interviews with members of the public.
It is not true that the Government have turned their back on victims of crime—quite the opposite. We have looked at a relatively small body with a relatively limited remit and taken the opportunity to remove it while also taking on board the opportunity to use the Victims’ Commissioner and her work much more extensively. The proposed abolition will in no way limit the opportunity for victims to articulate their opinions. The existence of the Victims’ Commissioner is a more effective and flexible means to ensure that victims’ views are independently represented to government. The Government’s intention to abolish the panel is in no way a reflection on the efforts of its members or the important recommendations that it has made to improve victim and witness services.
Lord Clinton-Davis
Did the coalition give any indication in the election that they were going to abolish the panel? What was the position of the Liberal Democrats and the Conservative Party?
Lord McNally
One of my weaknesses as a politician is that I am never expert on the specific pledges made in election manifestos. The last one that I remember in detail is one that I helped to write, but I will not mention which one and for which party. When the coalition took office, we took a general view. I will not produce groans from the party opposite, but in the light of the financial situation that we inherited—
Lord McNally
Absolutely on cue. That was the situation. I am not claiming that the £50,000 being saved by abolishing the panel will right the public finances. What is more important is that the coming into being of the Victims’ Commissioner, a creation of the previous Government, has overtaken the work of this relatively small body. I do not think that it is possible to put the interpretation on it that the noble Lord, Lord Bach, did, because the Victims’ Commissioner has in the past year been carrying out an extensive consultation with the public and victims, which will feed in very much in the way that the work of the panel has. As I said, I strongly doubt whether in either manifesto there was a commitment to this body one way or the other.
Lord Clinton-Davis
I can tell the noble Lord that there was no such commitment in either case.
Lord McNally
I will not say anything about the noble Lord and his dedication to reading election manifestos in detail, but it is often said that the only people who read election manifestos in great detail are the opponents of the parties that write them. I am absolutely willing to accept that.
The proposed abolition of the panel is based on the understanding that the Ministry of Justice will, through the commissioner and as a matter of course, continue to consult victims’ groups and engage with a vast range of criminal justice system agencies and voluntary and community sector groups on matters related to the views of victims.
On the point made by the noble Lord, Lord Bach, there is a large number of groups doing very good jobs on this, so it is over-egging the pudding a little to say that closing this relatively small group with a very short lifespan, which has been overtaken by the work of the Victims’ Commissioner, is going to damage victim support in the way that was suggested. Indeed, the victim sector contains many organisations set up by victims themselves that focus on specific issues such as homicide and sexual violence. The commissioner provides a valuable function in helping the Government to engage with this sector by ensuring that future policy is informed by the views of an appropriately broad and diverse range of individuals and groups. The commissioner has been meeting victims, and these representative groups across the country tell her their own experience of what has been happening. She is currently consulting on a range of issues, including the treatment of young victims and witnesses in cases that involve adult defendants and provision for the bereaved. Additionally, the Ministry of Justice has invited the commissioner to consult widely on and to participate in two of the department’s priority strands of work: the development of a more transparent sentencing framework and victims’ views relating to the rehabilitation of offenders and ways in which the victim might contribute to reducing offending.
The Ministry of Justice will continue to consult and meet victims and victims’ groups. We have just commissioned a full review of the services and support offered to victims of crime. Officials have commenced, as part of the review, a series of workshops with victims’ representatives to consult them on future strategy. These workshops have been attended by the Minister with responsibility for victims’ issues, the honourable Member for Reigate, Mr Crispin Blunt.
The proposal to abolish the Victims’ Advisory Panel should not be taken to indicate any wavering in the coalition Government’s support for victims of crime. Although the panel was set up to offer advice to the Secretary of State for Justice on matters relating to victims, it has never provided any form of victim support. The Government remain committed to ensuring that appropriate support is available for the most serious, vulnerable and persistently targeted victims of crime and to ensuring that the concerns of victims of crime are heard. I hope that I have reassured the noble Lord, Lord Bach.
On the specific question about WAVES, I will have to write to the noble Lord. I will investigate what has happened. On the crime survey, I have not been briefed that there is any threat to it, but I will inquire and write. I say to the noble Lord that I can understand why and, as I have said, I do not disagree that the previous Administration gave priority to the victims of crime. Building partly on their bringing in the Victims’ Commissioner, the removal of the Victims’ Advisory Panel is not the threat to victim support that he might have suggested in moving this amendment, which I hope he will withdraw.
Lord Newton of Braintree
Before the noble Lord, Lord Bach, withdraws his amendment, I shall express my frustration that the amendment on the Valuation Tribunal Service was not moved, because I anticipated that it would give me my first, and possibly my last, opportunity to be fully supportive of the Government in the course of these proceedings. I take this amendment as a similar opportunity. First, I express my sympathy to the noble Lord, Lord McNally, on his inability to remember the detail of everybody’s election manifesto. Secondly, I say to the noble Lord, Lord Clinton-Davis, that I take his observation to mean that there was no reference at all to the Victims’ Advisory Panel in the two manifestos, from which it appears to me to follow that there was no commitment to keep it regardless of changes in circumstances. Thirdly, the noble Lord, Lord Bach, made some perfectly good points, but they did not have much to do with the question of whether there was a need to keep this body. Fourthly, I thought that my noble friend made an overwhelming case in saying that there is no need for this panel now that we have the Victims’ Commissioner. The commissioner can take advice from whomever she wishes, so I support the Government.
Lord Bach
I thank all those who have spoken in this debate. The Minister has clearly persuaded at least one member of the governing coalition of the wisdom of his words, and I congratulate him on that. I thank him warmly for his full answer to this amendment and for dealing with the other questions that I asked. I look forward to his letter. I thank my noble friend Lord Clinton-Davis, too, for asking a very pertinent question. Like all good cross-examiners, he knew the answer to his question before he asked it.
Victims are a serious and substantial issue and I make no apology for talking about them in more general terms when I introduced my short amendment. I cannot say that I am totally satisfied with the Minister’s answer because I do not believe that the Victims’ Commissioner, a post that we set up and that the present Government very much support, was necessarily meant to be at the expense of the advisory panel, which is due to be abolished. There seems to be no reason why the two should not work hand in hand. Maybe there would not be as many advisory panels as there were before the commissioner was appointed, but the direct contact that there was between Ministers and victims of crime under the advisory panel system should be encouraged; it was of considerable use and advantage to Ministers.
My noble and learned friend Lady Scotland, who is in her place today, reminds me that she used to chair one of the panels. She says that she got a great deal of information and knowledge from it that might not be so available to Ministers in the future. This is meant as no criticism of the Victims’ Commissioner, who is an outstanding public servant, as the Committee knows well. I just ask the Government to think again about whether they should get rid of the concept of this advisory panel altogether. They should ask themselves whether the panel did not add something to the very difficult relationship between victims of crime and government.
Lord McNally
On the point about the thinking behind this, I note that a year before the Victims’ Commissioner took up her post the then Minister wrote to all the members of the advisory panel, whose terms were all coming to an end, asking them to stay on for an extra year until the commissioner was appointed. The panel members agreed to work on until May 2010, which suggests that even the previous Administration might have thought that the arrival of the Victims’ Commissioner would call into question the future of the panel. That relates to the question that the noble Lord, Lord Bach, asked me earlier about whether the panel had already been abolished. There was this hiatus because the previous Administration had not appointed a new panel. I suspect that it was thought somewhere that there would be an overlap between the Victims’ Commissioner and the work of the advisory panel.
Lord Bach
The Committee will be grateful to the Minister for mentioning that point, but it does not take away from the fact that the previous Government were not committed to scrapping the Victims’ Advisory Panel. At the time, it would have been quite understandable for a Minister, knowing that an election was due and that whoever became the Victims’ Commissioner would want to look at the position once he or she had taken their place, just to write that letter. Is it really the main, or an important, motivating force of the Government that it is worth saving £50,000 or whatever per year and that the good work done by the Victims’ Advisory Panel should be put on one side? There is a case for saying that the Victims’ Advisory Panel should continue in some form—perhaps a modified form. However, I am grateful to the Minister for his response. We will consider carefully whether we will bring this back again on Report. For the moment, I beg leave to withdraw the amendment.
Lord McNally
My Lords, the noble and learned Baroness sees an open goal when there is one before her, but she has approached it with charm and a great degree of kindness. Thinking of which quotes come to mind, I considered Sir Robert Peel who said during the Corn Law debates, “You must answer them, for I cannot”, but I know that that is not my responsibility this afternoon. I shall settle for Denis Healey’s “When you’re in a hole, stop digging”. I fully acknowledge the widespread feeling around the House about this matter and I am sure that feeling and indeed that passion will be noted by my colleagues.
I have noted, as did the noble and learned Baroness, that we have had all the usual suspects on parade, plus one or two others. I am keeping a tab on the noble Lord, Lord Newton. Earlier today, he went 4-3 ahead in terms of interventions that are supportive of me when I am at the Dispatch Box, but that lasted for only an hour and now he is back to 4-4. I went to Braintree the other week to speak to the Braintree Liberal Democrats and had to spend a good part of the evening hearing what a wonderful Member of Parliament the noble Lord was, so his lack of support is even more hurtful.
However, I understand where people are coming from on this. I understand also what the YJB set out to do and what it has achieved. A number of noble Lords have pointed out that it does not have a perfect record, but it is neither my job nor my wish to detract in any way from its achievements over these past 10 years. In 2000, there was a need for the YJB to provide coherent leadership and to establish a new youth justice system. However, the youth justice landscape has changed immeasurably since then. We fully intend to retain the youth offending teams and a dedicated secure estate, which are not being abolished with the Youth Justice Board. However, Ministers should be accountable for youth justice.
I thank the noble Lord, Lord Warner, and others for their comments about the Green Paper. It was rather unkind of him to describe Ministers as a motley crew; I would prefer to acknowledge the fact that all Ministers are birds of passage. It was a little unfair to describe the idea of bringing the Youth Justice Board within the Ministry of Justice variously as vandalism, bureaucratic diktat, Whitehall-knows-best, reintroducing failure and care by people who do not care. Those are not fair descriptions of civil servants in large departments, who carry out considerable management functions without the advantage or otherwise of arm’s-length bodies. If those descriptions were true, everything would be opted out from our Civil Service.
I note some of the views expressed about NOMS, although it already has responsibilities within the youth justice system. I shall try to say where the department is coming from at the moment but then perhaps address some of the specific points which rained down on me during the debate. In doing so, I immediately pay tribute to the record of the noble Lord, Lord Warner, with whom I had a very good discussion, as I did with the noble Lord, Lord Ramsbotham, about the origins of the Youth Justice Board. They both gave a vivid description of the situation prior to the board coming into being. It is not true that the youth justice system is the poor relation, nor is there any danger of it being so under our proposals.
The youth offending teams will remain in place. They are perhaps the greatest of the Youth Justice Board’s achievements. The holistic approach at local level of the youth offending teams has achieved real success and we want to build on that. Our reforms will build on the progress made by the YJB while restoring direct ministerial accountability for the delivery of youth justice.
The Government believe that youth justice, which involves the incarceration of children, is an important issue for which Ministers, not unelected arm’s-length bodies, should be accountable. The principal aim of the youth justice system, as established by the Crime and Disorder Act 1998, is to prevent offending and reoffending by children and young people under the age of 18. It is a system in which local authority-led youth offending teams have the primary responsibility for delivering youth justice on the ground. These YOTs comprise representatives from local authorities, health, education and children’s services. The system also includes a dedicated national commissioned secure estate for young people. Both these crucial delivery elements will be retained and neither will be adversely affected by the reforms we are proposing.
This is not because the YJB does not itself deliver front-line services. The YJB was established by the 1998 Act to provide leadership and coherence to the new system by exercising oversight functions. Its abolition is therefore a separate issue to the future of the youth justice system because its functions are to oversee local YOTs, disseminate effective practices, commission a distinct secure estate and place young people in custody. These functions are, of course, crucial in support of the effective delivery of youth justice and will, therefore, be transferred to the Ministry of Justice under our proposals, with an appropriate senior and visible level of leadership.
Since its establishment, the YJB has undoubtedly helped to transform the youth justice system. It oversaw the establishment of local youth offending teams and has fulfilled an important role in reducing offending and reoffending by young people by spreading best practice and helping to make youth justice a priority for local authorities. It has also put the delivery of youth justice at the forefront of local authority partnership working and has driven up standards in a discrete secure estate for young people. As I have said before, the noble Lord, Lord Warner, as the first chair of the Youth Justice Board, must take credit for bringing a level of coherence to the system and for raising the profile of youth justice issues.
There were good reasons why the YJB was initially established at arm’s length from government. This gave it the autonomy to make much needed changes and enabled staff with expertise in front-line delivery to lead the national rollout of youth offending teams. However, a decade on, the context in which youth justice is delivered has changed enormously, with youth offending teams now fully embedded at the local level and children’s services delivered through children’s trusts. The Government therefore believe that the oversight function of the YJB should be performed in a different way. Further, Ministers are ultimately accountable for youth justice and it is therefore right that they alone should be responsible for overseeing its delivery. Bringing the YJB function into the Ministry of Justice represents the most effective way to continue to secure the best outcomes for young people.
In reaching this decision the Government have taken into account the recommendations of the review of the YJB by Dame Sue Street, to whom I have also spoken. It should be pointed out that whether or not the YJB should be abolished was not within the scope of her study. The issue was also covered by the Ministry of Justice’s own review of public bodies.
We remain committed to maintaining a dedicated focus on the needs of children and young people in the youth justice system, while ensuring that there are appropriate and proper links to the wider criminal justice system, and that this system serves to protect the public. We also want to capture and replicate some of the best elements of the Youth Justice Board. The YJB successfully brought together staff from a number of different backgrounds, including staff with a direct experience of youth justice, social and health services, police and probation officers. This mix of skills and knowledge enables us to inform Government policy, both in Westminster and Cardiff, while also maintaining effective links with local delivery.
Lord Elton
The noble Lord said that not enough attention was paid to the youth offender teams. I specifically asked the Government to pay more attention to the youth offender teams, which do not want the Government to go on with what they are now proposing.
Lord McNally
The noble Lord gives me the opinion of the youth offender teams. It is always a bit dubious when noble Lords claim to know the opinion of a section under inquiry. In fact, we are also in contact with youth offender teams, but I take the point that he mentioned them.
I am trying to see whether there is anything that I should particularly answer beyond these points. As I said at the beginning, it is a cheap shot to say that bureaucracies cannot run things. The term bureaucracy is easily slung around. I take the point that we should concentrate on structures not dogma. The issue is not dogma but whether, within the constraints that we face, we can organise this more effectively. I take on board the criticisms and we are listening.
If the noble Lord, Lord Warner, wishes to test the opinion of the House, that is his right to do so. He is a former Minister and there are a number of others around. One of the problems as well as pleasures of being a Lords Minister is that, when you are in a position like this, you cannot make policy on your feet. You can take it back to colleagues and you can listen. I have listened and I will take the issue back to colleagues, if the noble Lord, Lord Warner, is in a mood to take that in the spirit that it is offered. I cannot promise beyond that, as he knows. As many have said, gathered together in the House today is an enormous level of ministerial, local government, social service and charitable experience that any Government willing to listen should listen to. I will take this away and am also happy to talk further with the noble Lord on the matter, but that is as far as I can go today, having set out where we are trying to go and why.
Viscount Eccles
There has been no mention of money or expenditure, which is not what this House has come to expect when discussing parts of this Bill. Does my noble friend have anything to say about that?
Lord McNally
The Youth Justice Board has at its disposal about £500 million a year, most of which is spent in procuring secure places. It is not that cancelling the Youth Justice Board would save £500 million or £400 million a year or whatever—I think that the estimate is something like £6 million over the period of this spending review. We are not arguing this as a money-saving exercise. Our judgment is that, successful though the Youth Justice Board has been, it has done its job and we want to try to do it differently within the Ministry of Justice while keeping much of the ethos of the Youth Justice Board and much of the lower structure at local level that has been the basis of its success. However, I am interested to hear what the noble Lord, Lord Warner, has to say to my reply.
Lord McNally
That is the second intervention that has reminded me what a bird of passage is ministerial office, for which I am duly grateful. I take note of the intervention from the noble Lord, Lord Elton. What would have happened if I had said that I was going to stand firm? I have said that I would take the matter back; I cannot make any more promises than that. I would be interested in having further talks with the noble Lord, Lord Warner, but I am interested to hear what he has to say having listened to this debate.
The Earl of Listowel
I am grateful that the Minister has undertaken to take the concerns of the whole House back to his colleagues and to reflect on what has been said, but I have a couple of questions about specific points.
First, on advocacy and social work provision in young offender institutions, advocacy has been put in place by the Youth Justice Board for a number of years now. I declare an interest as patron of Voice, an advocacy provider in several young offender institutions. It seems very clear to me, when I speak with advocates and visit young offender institutions, that this service is very much valued by the young people but also by the governors of those institutions. They can be particularly helpful in working to encourage local authorities when people are resettled to provide them the services that they need to resettle successfully. Will the Minister in the interim, between this and the next stage of the Bill, look at the role of advocates and, at the next stage, give some reassurance about advocacy provision under the new arrangements?
The second point that I should like to ask him about is social work provision in young offender institutions. My noble friend Lord Ramsbotham referred to the Children Act 1989 and how there was some lack of clarity about whether it applied to children and young people in the secure estate. The Munby judgment established that local authorities were indeed responsible for the welfare of young people, particularly in care, in prisons. Social workers were appointed by the last Government to each young offender institution. In the course of time, the Government gave responsibility for running those posts to local authorities, but there was no agreement among local authorities on how they should be funded. Sadly, half or perhaps more than half of those posts are vacant. I would be grateful if the Minister could look at this situation in the interim, between now and the next stage, and give some reassurance that there will be a continual push to ensure that those vacancies are filled and that the important work that those social workers provide for those young people is delivered to them as needed. We have heard today how vulnerable those children are and their need for expert support in young offender institutions.
Lord McNally
I shall certainly take that back. Part of the problem with the two issues that the noble Earl raises—both the advocacy commitment and the social worker commitment—is that they are responsibilities of local authorities. One thing that we have made clear in this approach is that we intend to make local authorities much more responsible for the delivery of these parts of the youth justice system. However, we note the point and can return to it at Report.
Lord Warner
My Lords, I am grateful to all those who have spoken in this debate, especially the noble Lord, Lord Dholakia, who appears to have damaged his career prospects in doing so.
I began to feel a bit sorry for the Minister as the afternoon wore on. He dealt with the debate with his customary charm and evasion, and I pay tribute to those skills—particularly with some of the noises coming from behind him. If he thinks that he has trouble with me, I think that he has a lot more trouble with the noble Lord, Lord Elton.
It is interesting that five former Ministers spoke today from different Benches. They all showed a healthy scepticism about the ability of government departments to take on these jobs. It is worth bearing in mind that it is not just a load of head-bangers like me who are saying that but some of the Minister’s colleagues, who have spent their time in the salt mines of government. I note that the Prime Minister was not entirely overwhelmed by the performance of the Civil Service this week in some areas of its activity, so if the Minister gets too energetic in defending the MoJ’s civil servants, he may want to think about whether he will join the noble Lord, Lord Dholakia, in the doghouse in terms of his ministerial prospects.
There is quite a lot here for the Minister to dwell upon. Perhaps I might just correct him and others who spoke this afternoon: they are youth offending teams not youth offender teams. It helps you to convey a sense of knowledge about the sector if you get the titles right, I have always found. I will not spend long talking about the issues that were raised but I will spend a few moments on the secure estate. The noble Viscount, Lord Eccles, raised the interesting point about money. He was quite right to do so, because the secure estate gobbles up most of the Youth Justice Board’s budget. It will gobble up a lot more money if the good work that Francis Done and others have done is not continued to keep down the number of young people going into custody down. The Government might find that any savings they make by taking some of these functions in-house will, in a few years, result in a some surprises in the Ministry of Justice’s budget if not such a great job has been done as that carried out by Youth Justice Board in commissioning services and keeping youngsters out of custody.
The noble Lord, Lord Elton, raised an interesting point, which I would certainly want to reflect on before Report. It was an important point about whether one can ensure the good behaviour of future Ministers in this regard.
The Minister mentioned that his colleagues wanted the adult criminal justice services to learn from the advantages of the youth justice service. That is a praiseworthy objective, but it seems to me that he is more likely to achieve that if he looks at the instrument that was used with the youth justice services to try to drive change. It took a long time to get some of these programmes—their structures, relationships and working practices—changed when the Youth Justice Board was set up. The youth offending teams did not all say, “Hurrah! Parliament has passed the Crime and Disorder Act and we’re all going to change our practices”. It took a lot of hard graft to get people to do that. You are seeing the results of that hard graft coming through in the work of the Youth Justice Board in the past few years. Before you throw it all away, you need to think about how long it takes to get change in most public services.
I will reflect on what the Minister said. I am after not a Pyrrhic victory but a real victory. I am very encouraged by some of the responses from across the House on this amendment. I will reflect on everything that was said, but in the mean time I beg leave to withdraw the amendment.
Bribery Act 2010
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Lord Hannay of Chiswick
To ask Her Majesty’s Government when they intend to bring the Bribery Act 2010 into force.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are committed to the implementation of the Bribery Act. We are urgently working on the guidance to commercial organisations to make it practical and useful for legitimate business and trade. After the guidance is published, there will be a three-month notice period before full implementation of the Act.
Lord Hannay of Chiswick
My Lords, I hope the Minister will forgive me for making my thanks for that not very satisfactory Answer fairly perfunctory. The fact is that the Act should be in force by now. Does he not agree that those who have been campaigning so vociferously against the entry into force of the Act have done Britain’s industry no favours whatever by suggesting that it can export successfully only by the use of these dubious practices? Does he not also agree that suggestions that this piece of legislation was rushed through Parliament before the election are a travesty, considering that the matter was subjected to pre-legislative scrutiny for a lengthy period in a committee of both Houses?
Lord McNally
My Lords, I agree entirely with the noble Lord’s last point: the legislation was subject to very careful scrutiny. Since coming to office, we have also subjected the Act to a wide range of consultations aimed at making sure that the Act, which passed both Houses with all-party support, was fully understood and could be implemented fully. I take the noble Lord’s point, as I think that the Government do, that any suggestion that British industry can only make advances in overseas trade by bribery does unjust damage to our reputation as a fair-trading nation.
Lord Bach
My Lords, I had the privilege of taking the Bill through this House. The Minister is quite right: it was received with widespread and vocal support from all sides of the House. That does not always happen with Ministry of Justice Bills. One criticism, however, was that legislation should have been put in place sooner, not as late as it was. As the noble Lord, Lord Hannay, has reminded us, one year after the Bill became an Act of Parliament, we still do not know when it will be implemented. Does the Minister agree that this is totally unsatisfactory and that he needs to go back to his department and insist that the Bill be implemented as soon as possible?
Lord McNally
I hear what the noble Lord says. During the period we are talking about we have not been idle. My right honourable and learned friend the Lord Chancellor and Secretary of State for Justice has met representatives of the CBI, the multinational chairmen’s group of the International Chamber of Commerce, the Federation of Small Businesses, the British Chambers of Commerce and Transparency International. We are trying to make sure that this is understood and it is going to be implemented effectively. I certainly will take note of the comments made in this House today about the sense of urgency.
Lord Howe of Aberavon
My Lords, is my noble friend aware that on boards of British companies that include American directors, British directors have long been embarrassed by the great enthusiasm with which their American colleagues cite the Foreign Corrupt Practices Act, well ahead of anything we have had alongside it for a very long time? Despite what my noble friend has said, is it not the case that it is becoming increasingly difficult to explain the delay, and that that is doing increasing damage to the reputation of British industry and, indeed, to the reputation of the Lord Chancellor himself?
Lord McNally
My Lords, again I cannot help but draw attention to the fact that there is a sense of unity in the House on this. We are proceeding with all due speed on the matter. One thing that gives me encouragement, having sat in on a number of the meetings the Lord Chancellor has had with industry, is that industry itself seems to be quite capable of living with this Act. I take note of what my noble and learned friend has said, but I do not think that this is a matter of the reputation of the Lord Chancellor, although there is the question of implementation on which I hope these exchanges will be duly noted.
Lord Goodhart
My Lords, does my noble friend agree that bribery and corruption are hugely damaging to developing countries, not least to those in North Africa and the Middle East, and that that is a very important reason why the Government should not delay any further in bringing this Act into force?
Lord McNally
My Lords, the Government are taking strong action on anti-corruption, including the recovery and freezing of corrupt assets in the areas the noble Lord has referred to, but the message is clear from this House that there is a matter of national reputation involved in any further delay. I duly take note of that.
Lord Davies of Stamford
My Lords, have any bribes, facilitations or other payments that might or could be bribes within the meaning of this Act been paid from public funds to Libyan officials over the course of the past few weeks? If so, at what level and by whom were those payments authorised?
Lord Campbell of Alloway
I am much obliged to my noble friend. This is not a long question. Is the noble Lord aware that nothing he has said justifies the conduct of the Government on this Bill—nothing at all?
Lord McNally
My Lords, one of the great advantages of this House is that a Hansard report is made of interventions. I will ensure that the Hansard report of the exchanges that have come from all parts of the House are duly reported back to the relevant government departments.
Elections: Voting Arrangements
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, on that last point, perhaps the noble Baroness, Lady Gale, should look behind her and ask why the Labour Government did not deal with that apparent anomaly, but I will have a look at it. It seems strange that you can vote in one referendum but not in another. I sincerely hope that the Welsh people will turn out in good numbers and vote yes in tomorrow's referendum.
The key thing about this debate—I congratulate my noble friend Lord Astor on securing it during the first year of a five-year Parliament—is that many of the issues raised are good, should be studied and, I hope, be considered by the Government with urgency. I will deal later with the specific issue of the military vote, although it is significant that more than half the speakers devoted most of their remarks to it. I take on board the priority that the House gives to addressing that matter.
Of an estimated 5.5 million British citizens resident overseas, only about 30,000 vote. We must address that issue. As my noble friend Lord Roberts pointed out, for all the efforts made, only about 500 soldiers in Afghanistan voted, out of about 10,000. That disengagement of the military is not healthy. I take on board the points that have been made and will return to them.
The point about postal voting and the election timetable has been made. I take the point made by the noble Baroness, Lady Gale, that, although proxy voting is an alternative, it is not one that all electors want. Therefore, it is right that we address the issue of the postal vote. My right honourable friend the Deputy Prime Minister said last September that the Government have noted the Electoral Commission’s view, to which the noble Baroness, Lady Gale, and my noble friend Lord Roberts referred, that an extension to the electoral timetable would be an advantage. The Electoral Commission has said that a longer timetable for Westminster elections could be created by bringing the key deadlines into line with those used for the majority of elections currently held in the UK. That would mean that the election timetable would begin 25 working days before polling day.
As I said, the Electoral Commission's views are on the table, and I know that the Government are working on the issue with a sense of urgency—not in time, of course, for the referendum on 5 May. Again, the Electoral Commission is planning guidance to administrators to prioritise postal votes, particularly postal votes going overseas.
Several noble Lords mentioned electronic voting—
Lord Wills
Before the Minister leaves the point about the referendum, is he saying that it is impossible for the Government to issue postal ballots for the referendum before 18 April?
Lord McNally
No, we will not do so. I will come back to that.
A number of countries have moved to e-voting but some have stepped back from it—in particular, the Netherlands and a number of states in the United States—because of the security issues that were referred to by the noble Lord, Lord Patten. One problem is that e-voting is vulnerable to attack and to fraud. On the other hand, I have actually voted electronically in a pilot scheme in local elections seven or eight years ago. I voted in a St Albans local election from my office in London. Although there is not a great deal of enthusiasm for e-voting at present, I think that if we are to have the in-depth study that this debate urges, a study of e-voting would be worth while. Voting in UK embassies is not easy, given the constituency basis of our elections and the need to get ballot papers to cover all parliamentary constituencies.
Let me use the last few minutes on the military vote, because I take the point of the noble Lord, Lord Patten, that the military covenant is important and the right to vote on time and in secret should be addressed as part of that covenant. I will certainly take that message back. It is important that we try to encourage our service personnel to vote. The Government are making every effort to encourage participation in the vote on 5 May, not only in Afghanistan but in other British service areas where the British Forces Post Office will make voting in military locations a priority.
As I said, the Government are introducing an initiative for voting on 5 May. The deadline for new postal vote applications and changes to existing votes for the referendum is 5 pm on 14 April. The chief counting officer for the referendum has directed electoral administrators to prioritise postal votes going overseas, to ensure that they are sent out as soon as possible after the deadline for new postal vote applications has passed, with the first issue of postal votes to take place not later than 18 April. That issue will include postal votes for members of the Armed Forces. Why 18 April? Many areas will issue combined ballot packs and so will need to have election papers included with the referendum ballot. Also, 14 April is the last date for registration, and we will need to send out postal votes after that date in case of any change in details—a point raised by the noble Lord.
I say frankly and honestly to the House that on a wide range of the issues raised, such as the 15-year rule which was raised by my noble friends Lord Lexden and Lord Lester, I do not think there is a rationale—I almost feel I am back to why the AV Bill provides that there should be 600 MPs—for the figure of 15 years, five years or 20 years. However, I think that it is certain that, in a world where many more people work abroad, the issue should be properly looked at. I say to my noble friend Lord Lexden that Disraeli’s most famous intervention into voting was to dish the Liberals in 1867 and then bring in a more radical franchise in 1868.
I leave the House with the message that the issues raised tonight are very substantial. They have been raised at the right time in this Parliament by my noble friend Lord Astor and other noble Lords who have spoken. I will make sure that my right honourable friend Nick Clegg and his colleague, my honourable friend Mark Harper, in the Cabinet Office, who have responsibility for these matters, see the Hansard of this debate. It will carry with it my very strong endorsement that we should carry forward the momentum of what the noble Lord, Lord Wills, was trying to do towards the end of the Labour Government and that early in this Parliament we should have a really radical look at voting for our overseas residents and, very importantly, for our military. I hope that will be the lasting value of this debate.
Prisons and Young Offender Institutions: Education and Training
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Lord Sheldon
To ask Her Majesty’s Government what arrangements are in place to provide education and training for those in prisons and young offender institutions.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government believe strongly in giving offenders the skills and training they need to get and keep jobs. That reduces their likelihood of reoffending and is of clear benefit to society. A review into the efficiency and effectiveness of offender learning led jointly by DBIS and the MoJ is nearing completion and will report shortly.
Lord Sheldon
My Lords, I look forward to that response in due course. Is it not clear that education and training can reduce prison overcrowding, and that those who have not had proper education and training are three times more likely to be convicted? The overcrowding in prisons limits valuable education and training, so what action will be taken to reduce that overcrowding?
Lord McNally
The noble Lord will know that it is our intention to try to bring down the prison population in the next few years, partly by following his line of argument: that if there is a proper rehabilitation strategy for prisoners, they are likely not to reoffend, which will take the pressure off the prison population.
Lord McNally
I am afraid that that is not in my briefing but I will write to the noble Baroness and put the information in the Library. It is important to engage prisoners of all ages into the concept of learning, and I am sure that a writer in residence will be a spur to that end.
Baroness Howe of Idlicote
My Lords, considering the sizeable percentage of prisoners with mental illness, can the Minister tell us what the Government propose to provide the necessary education and training to meet the unique and challenging needs of this population?
Lord McNally
My Lords, I hate to keep saying “Shortly a paper will be published”, but the Department for Education is about to publish a Green Paper on special education needs, which will look again at the special education needs of prisoners. One of the things pointed out in the Green Paper published by the MoJ—it is still open for consultation for another four days—is that far too many prisoners have undetected mental problems. We are making every effort to ensure that opportunities and facilities are in place to detect and help to treat those problems.
Baroness McIntosh of Hudnall
My Lords, going back to the noble Lord’s answer to the noble Baroness, Lady Sharples, can he confirm that the Government value the broad educational opportunities created by the use of the arts—including the performing arts—in prisons? Will he also confirm that the Government will not fall victim to the strident voices telling us that that kind of opportunity in prison is going soft on prison life?
Lord McNally
I absolutely agree with the noble Baroness. Often our media like to leap on an initiative and present it in a way that, as she says, suggests it is soft on prison. The whole rehabilitation strategy tries to break into the ludicrous situation of people going through the prison system and reoffending shortly after being released. If we can find ways of engaging them in cultural interests by providing education, we will save public money and avoid further crime. That is plain common sense.
Lord Dholakia
My Lords, education and training has a direct impact on the rehabilitation of offenders, so will my noble friend ensure that this part of his department’s budget is ring-fenced? Will he also look at the possibility that, any time non-custodial sentencing options are considered, training will form an essential part of that programme?
Lord McNally
I am reluctant, particularly with a Treasury Minister at my shoulder, to make commitments on ring-fencing of any budget, but the kind of campaign that my noble friend has led and with which he has been associated on the rehabilitation of offenders is very much in our minds. There is illiteracy, innumeracy and a lack of various other aspects of education and training among prisoners, so it is a no-brainer to see that if we can break into that we can also break into the circle of crime.
Baroness Trumpington
The Minister has just talked about illiteracy. Does he agree that it is very difficult to get a job when you leave prison and you cannot read and write? Can he explain why the farms and gardens are closed? They provide very suitable work for people who may have a great love for that kind of work but who cannot read and write.
Lord McNally
Across the Prison Service we are trying to identify opportunities for people to be trained. As the noble Baroness says, for somebody who lacks literacy—although I hope we address that in our programmes—gardening and similar park activity may quite often provide rewarding and worthwhile employment.
Lord Elystan-Morgan
My Lords, does the Minister recollect that the prison rules still express the reformation of the prisoner as the main purpose of incarceration, and that adequate educational and training services are central to that very concept?
Lord McNally
Again, I could not agree more. Of course punishment is an aspect of prison, as is protection of the public from dangerous prisoners. However, as I mentioned, with issues such as homelessness, dysfunctional families, lack of education and lack of a job when leaving prison, if you can intervene while people are in prison and prepare them for life outside with a proper policy on the rehabilitation of offenders, then you break into the cycle of crime, lower the numbers in prison and make it a win-win situation for the public and the taxpayer.
Prisoner Transfer Agreements
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The Lord Bishop of Liverpool
To ask Her Majesty’s Government what plans they have to review prisoner transfer agreements.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we have a small number of bilateral arrangements which we keep under review, including on prisoner consent. The UK is a signatory to multilateral agreements for prisoner transfer which would require the agreement of all parties to a review.
The Lord Bishop of Liverpool
My Lords, I thank the Minister for his Answer. Will he look into the case of Steven Willcox who, on transfer from Thailand, is having to serve a 29-year fixed sentence for possession of a small amount of drugs, when a number of other transferred prisoners on much more serious charges are released much sooner? Will he also look into the disparity of treatment between those transferred prisoners on fixed-term sentences that cannot be changed and those on whole-life sentences that can be reassessed, and even reduced, by British courts?
Lord McNally
My Lords, officials of the Ministry of Justice have recently concluded a review of the Anglo-Thai agreement and submissions will be considered shortly by Ministers. The issues raised by the right reverend Prelate will be considered by Ministers when we receive that review.
Lord Corbett of Castle Vale
Will the review explain why some foreign national prisoners are able to serve their sentences in their country of origin and some are not?
Lord McNally
In some cases we have agreements with the countries of origin. Where we do not have agreements, obviously we cannot send those prisoners back. We have recently concluded an agreement within the EU that will come into force on 5 December this year which will extend that two-way process to 27 countries. There is also a protocol with the Council of Europe which extends to 34 countries, so we are building this up. We are seeking other bilateral arrangements which will allow such exchanges.
Lord Avebury
My Lords, I appreciate that officials are now considering whether amendments to the Anglo-Thai prisoner transfer agreement might be drafted to bring the time British nationals spend in prison following transfer into line with that required by other European countries. What does my noble friend think of the suggestion that we should approach the Thai Government at ministerial level with a view to getting round a table and eliminating all the random variations among sentences served under the present arrangements? Better still, since my noble friend has explained that the US and some other countries refuse a prisoner a transfer when they think that it will result in an unacceptable reduction in the time actually served, could we propose an international conference of states that participate in PTAs to discuss ways of eliminating anomalies that may arise?
Lord McNally
I will certainly take back to my right honourable friend the Secretary of State the idea of an international conference, which I presume would also come within the bailiwick of the Foreign Secretary. The key thing to remember, however, is that the idea of the prisoner exchange is for prisoners to have the right to return—for most British prisoners, to return to Britain to serve their sentence is a considerable advantage in the first place—so the aim is not to second-guess the authorities in countries where they have committed offences. It is important that we keep that in mind.
Lord Bach
We on this side absolutely accept that this is a difficult problem that needs careful handling. While making it quite clear that I am not talking about any individual case—it would be wrong to do so from the Front Bench—I think that the right reverend Prelate has a point, which I hope the Minister and his officials will look into. If someone on a fixed sentence is transferred back to this country, very little can be done in terms of releasing that person earlier than when the fixed sentence finishes, whereas if they have committed a worse offence but are on a whole-life sentence, it is easier to release them earlier. That seems to be a bit of an anomaly, and the Government of which I was a member obviously faced the same anomaly as the noble Lord’s Government. Does he agree that that is the general point that needs carefully to be looked into?
Lord McNally
I agree. I am not a lawyer, but I am advised that that is exactly the position we have in this country: the people in jail on very long fixed terms and those on life sentences are treated differently when trying to vary those sentences. I go back to the central issue, which is that the transfer of prisoners home is to allow them to serve their sentences back home, not to benefit from a review of sentences. However, I acknowledge that the points made by my noble friend Lord Avebury and the right reverend Prelate are worthy of review by Ministers. We have now received a submission from officials on this, which we will study along with the remarks made in these exchanges. When possible, we will make the House aware of our conclusions.
Lord Ramsbotham
My Lords, when discussing this matter with some overseas territories from where foreign nationals have come, there has always been a sticking point over the length of sentence and the length of time that people might be expected to serve. If people go back from this country, there has been a fear that they might be released before the end of the sentence awarded by our courts. The key part of the sentence that we are talking about is at the end, when people are appropriately resettled into their country of origin. Can the Minister confirm that it is the resettlement end of the sentence which will be the subject of the discussions in the review that he mentioned?
Lord McNally
On this particular matter, no; we are looking at the broad issue. However, it is interesting that the noble Lord should say we are concerned that we send back to their country of origin prisoners who may then be given an easier sentence than the one imposed by our courts. Perhaps I may suggest that that precisely may be the concerns of countries that send our prisoners back. Countries have a right to their own system of justice, and some of them take matters such as drug offences very seriously indeed. When you are resident in those countries, you should be aware of the seriousness with which they view such offences.