Offender Rehabilitation Bill [HL]

Lord McNally Excerpts

Monday 20th May 2013 Lords Chamber

Moved By

[Lord McNally]

That the Bill be read a second time.

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

My Lords, the purpose of this Bill can be summed up very simply: to improve the support we give to offenders in order to break the cycle of reoffending. There are many noble Lords speaking today who have championed reforms on this topic with successive Governments. Faced with such experience and expertise, it may seem unnecessary to dwell on why we need an Offender Rehabilitation Bill, but let me remind the House of the problems that have inspired this Bill, and of what has driven those who have campaigned long and hard for those reforms.

Last year, around 600,000 crimes were committed by people who had broken the law previously. Almost half the offenders released from our prisons offend again within a year. That goes up to a staggering 58% for those sentenced to prison terms of less than 12 months. And yet there is no statutory requirement for most of this group to receive supervision and support after release. As a result, many of them leave the prison gates with little more than the £46 in their pockets.

Such offenders have a host of complex problems: a shocking number of them will have been through the care system, and many have come from broken homes and are addicted to drugs and alcohol. As noble Lords will know, a greater proportion of women than men in custody are serving sentences of twelve months or less—21% compared with 10% of men in 2011—and many of those women will themselves have been victims of domestic violence.

The Bill aims to transform the support available for offenders given short prison sentences by introducing a 12-month period of rehabilitation in the community after release. The first part of this period will involve release under licence, in the same way as with longer-sentenced prisoners now. Indeed, the first clause of the Bill extends release on licence to all offenders given custodial sentences apart from those of a single day. However, for many offenders, this will not give long for those providing services to intervene. That is why Clause 2 creates an additional supervision period, solely for the purpose of rehabilitation, which will “top up” the licence so that every offender released from a sentence of less than two years has at least 12 months of supervision after release.

The conditions of this supervision period, which are set out in Schedule 1, reflect its explicit purpose of rehabilitation. They can include visits from the offender’s supervisor, drug testing and appointments in relevant cases, and participation in activities that the supervisor thinks will support rehabilitation. Activities may cover a wide range of different interventions. For example, they could include restorative justice where appropriate and where both victim and offender consent. I remind noble Lords of the Government’s strong commitment to increasing the use of restorative justice. In particular, I take pride in the fact that the Crime and Courts Act 2013 now puts pre-sentence restorative justice on a statutory footing for the first time.

We might also expect to see providers make greater use of mentoring. Excellent work is already going on, for example, in prisons. My right honourable friend the Deputy Prime Minister in a speech this morning drew attention to the work being done in Peterborough prison, where older, longer-serving prisoners are actively mentoring those serving shorter sentences. Given their experience, those who have been through the criminal justice system themselves can sometimes be most effective in convincing others that they really can and should turn their lives around.

Supervision after licence will allow maximum discretion for the professionals who work with offenders to tailor their interventions to the needs of each individual. However, it also balances that with a period long enough to tackle the complex issues that prisoners released from short sentences often face.

The Bill also creates a new role for the magistracy in overseeing the effectiveness of supervision after release. While the supervision period will apply automatically to all short-sentenced prisoners after release, magistrates and district judges will be able to hear cases in which an offender is alleged to have breached a requirement of supervision. Clause 3 will give them a range of options for dealing with a breach, including a fine, unpaid work, a curfew or, ultimately, committal back to custody for up to 14 days. This will give magistrates a much greater oversight of the delivery of sentences for this group of offenders. We intend to engage with the Judicial College and the Sentencing Council on the support and guidelines that this new role might require. I look forward to hearing the noble Lord, Lord Ponsonby, on these matters, given his experience as a magistrate.

I now turn to the wider Transforming Rehabilitation reforms. Noble Lords will know that, on 9 May, the Government published their strategy for reforming the services delivered to offenders in the community. We will create a new public sector National Probation Service, working to protect the public and building upon the expertise and professionalism which are already in place. The National Probation Service will report to the Secretary of State as part of the National Offender Management Service. This will give the probation service a stronger role within NOMS and the Ministry of Justice. The National Probation Service will play a fundamental role in protecting the public from the most dangerous offenders in our communities. Probation professionals in the National Probation Service will continue to work to protect the public from those who pose the greatest risk of harm and have committed the most serious offences.

Alongside this, we will open delivery of services for offenders in the community to a diverse range of new rehabilitation providers, as envisaged in the Offender Management Act 2007. We expect to see a wide variety of voluntary and private sector providers, from local community groups to regional and national organisations. In particular, we want to see a system which values and utilises the local expert knowledge of the voluntary and community sector. These providers will work alongside the National Probation Service and will manage the vast majority of offenders. We expect that most staff currently performing probation roles will transfer to the new providers. We will put in place a new system where the skills and expertise of probation professionals, coupled with the innovation and versatility of voluntary and private sector providers, support the rehabilitation of all offenders.

Opening up these services will allow us to make savings which we will invest in rehabilitation. It will also allow us to make better use of the money we already spend on managing offenders. We will create incentives for providers to focus relentlessly on reforming offenders, giving those delivering services flexibility to do what works and freedom from bureaucracy, but only paying them in full for real reductions in reoffending. Our payment structure will ensure that providers have to work with all offenders, including the most prolific and hardest to reach.

Finally, we will also put in place an unprecedented nationwide through-the-prison-gate resettlement service. This will mean that one provider will give most offenders continuous support from custody to the community. We will support this by ensuring that most offenders are held in a prison designated to the area to which they will be released for at least three months before release takes place. I hope that noble Lords will be as enthusiastic about this last reform as we are. It has long been recognised that closeness to home is an important factor in an offender’s resettlement process—and something on which the noble Lord, Lord Ramsbotham, has long campaigned. Our reforms will draw on the best that organisations across all sectors have to offer, allowing access to offenders at the start of their time in custody through to release and beyond.

Linked to these wider reforms, parts of this Bill will support individuals working with offenders—whether they are staff of the National Probation Service, voluntary and community sector workers and volunteers, or those working for new rehabilitation providers—to use their experience of working with offenders to provide innovative services. Just as the new supervision period provides the maximum discretion, so we have tried to match that for non-custodial sentences. For community orders and suspended sentences, Clause 13 will create a new rehabilitation activity requirement. This combines the existing supervision and activity requirements and gives those supervising an offender more discretion to tailor activities to their needs during the course of the order. Clauses 14 and 15 make similar reforms to the programme and attendance centre requirements. These reforms build on the efforts we have already made to strengthen community orders, so that sentencers and the public can be confident that they are a robust sentence which combines punishment with effective rehabilitation.

I am sure that today we will hear genuine concerns about the pace and direction of our reforms, but I remind the House that a number of noble Lords across all Benches have campaigned for many years for greater support to be given those sentenced to less than a year in custody. They have argued for better through-the-gate services and for more effective and better respected community sentences. These are ambitions which this Government share and this Bill gives a real opportunity for them to become a reality. The hard fact is that without our wider reforms we would not be able to afford to extend rehabilitative support to offenders released from short sentences, but neither could we afford the status quo, with offenders passing through the system again and again, with more victims hurt and more communities damaged. It is the need to tackle that cycle of reoffending, particularly for offenders released from the shortest prison sentences, which drives these reforms and is the central purpose of this Bill. If we can cut deep into the 58% reoffending rate for those sentenced to less than 12 months, it will change lives—not just for victims but for offenders, whom it may well help to move away from a life of crime.

I know that the objectives underpinning this Bill are supported by the whole House. The provisions themselves will be subject to close and careful scrutiny today and through every stage of the Bill’s passage through this House. But I believe it is a piece of genuinely radical reform deserving of your Lordships’ support, and I commend this Bill to this House. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, first, I thank the noble Lord, Lord Ponsonby, for that measured response. I thought his peroration wandered into Beecham territory, but for the most part it was moderate and constructive, and for that I am most grateful. I see him as a kind of David Beckham figure, coming to dazzle us on the Front Bench and then all too soon going away again. However his participation today and, I hope, in Committee and at other stages of the Bill is now guaranteed.

It is very difficult responding to so comprehensive a debate. It is one where Governments can never win. We pilot, analyse and consult, and then we run out of steam. If we push ahead with radical ideas, we are going too fast and failing to consult. I am not quite sure how to respond to the tour de force of the noble Lord, Lord Ramsbotham. He ended on “The Tempest”, but his message was more from “Life of Brian”. He is quite sure that the Secretary of State is,

“not the Messiah, he’s a very naughty boy”.

One rather more serious point, which I make in all comradeship to both the noble Lord, Lord Ramsbotham, and my noble friend Lady Linklater, is that sometimes if a department makes any move at all, they are so precise about what is wrong that you lose all sense of whether they are supportive of at least the attempt. Of course, there are questions about so radical and innovative a policy. I will try to cover some of them in this reply and I will also look forward to a very thorough examination in Committee.

Since he was one of the last speakers and his name is at the top of my pile of notes, perhaps I may thank my noble friend Lord Bates for his intervention. It gave me a breather and he made a very important point about education. We will be bringing forward thoughts on education and its place in the youth sector, but it also has an important role to play in rehabilitation in the adult sector. It ties in with a point that is often made by the noble Lord, Lord Ramsbotham, about mentoring and the benefit of initiatives such as the Toe by Toe project, whereby literate prisoners help illiterate prisoners to master reading and writing.

I will try to cover the major points in my response and note some of the key ideas. I will follow up the idea from the noble Lord, Lord Beecham, on ex-service personnel because there is growing concern about how many of our ex-servicemen seem to end up in the criminal justice system as offenders. We will look at ideas that have worked and we will certainly follow them up.

A number of noble Lords expressed concern about whether there will be scope for small providers. We intend to put in place market stewardship arrangements so that the smaller voluntary and community sector providers can bid to be a prime provider or to be a partner. We are running a two-part £500,000 grant to support VCS organisations to overcome the barriers to participating in the rehabilitation reforms and, as has been said, this morning my right honourable friend the Deputy Prime Minister announced further funding. I should also like to follow up with my noble friend Lord Marks the idea of a chartered institute of probation officers or some such body. That is something that sits well with the idea of a National Probation Service. I have said many times from this Dispatch Box that I have great admiration for the probation service and at no time have I suggested that it is the fault of the service that we have a 56% rate of reoffending, or indeed any other percentage. The service does an excellent job. What we are doing here is not a condemnation of the probation service but an attempt to restructure provision in a way that gets us better value from the money that we are making available for rehabilitation. I take the point made by a number of noble Lords, including the noble Baronesses, Lady Howe and Lady Healy, about women. It is something that we may explore in Committee.

I will deal with some of the broader points made by the right reverend Prelate the Bishop of Newcastle later, but I do not think that ever in my political life have the words, “Public is bad, private is good”, passed my lips. It is an absurd assumption and is certainly not part of the motivation behind this Bill. However, diversity, variety and flexibility are good, and those are what we are trying to promote in what we are doing. I will deal with the matter of breach, raised by my noble friend Lady Berridge, later, but perhaps I may flag up that I have visited one of the Clink restaurants, and very good it was too. They are a real and functioning example of rehabilitation; the hospitality world is one in which the range of skills required matches well with those of prisoners.

I have noted the point made by the noble Baroness, Lady Armstrong, that the previous Government themselves examined payment by results and were none the worse for that. As we have pointed out before, much of this restructuring depends on the 2007 Act. I am not scoring points here; I just want to make the point that it has been a direction of travel for a long time in both prisons and probation because, as has been said a number of times, the private and voluntary sectors have been involved in rehabilitation for a long time. I have seen provision by St Giles Trust, Turning Point and others that demonstrates that. We want to look again at social investment bonds. As the noble Baroness said, they could and should be a major long-term part solution to some of the issues we face. However, I acknowledge her experience and take her advice about the need to find a long-term basis for such investment.

My noble friend Lord Dholakia let it out of the bag that he is my long-term mentor on criminal justice matters, and I hope that I am all the better for that. He made the important point that we should not confuse voluntary with amateur. The voluntary sector has a great deal of professionalism to give us in this area. I hope also that we can press forward on the Rehabilitation of Offenders Act 1974, and we certainly intend to do so as soon as possible.

I take on board the warning from the noble and learned Lord, Lord Woolf, that we should proceed with caution and about the danger that what we are doing will somehow legitimise and justify an inflation in short-term sentencing. I do not think that will happen. As the noble Lord, Lord Ponsonby, recognised, we are talking to magistrates and the Sentencing Council with this very much in mind. The noble and learned Lord also made the point that this kind of attempt has been made before with custody plus, and we will try to learn some of the lessons from that.

As well as raising the issue of women in prison, which I am very willing to explore further in Committee, the noble Baroness, Lady Healy, warned against setting people up to fail. I see that as a proper warning and one that we will take to heart when putting these reforms in place. I was glad that my noble friend Lady Linklater welcomed the emphasis on mentoring. She, too, expressed concerns about the probation service and mentioned that it is now 100 years old. I do not believe that we will lose the skills base through these reforms. They will be redeployed across the sector. However, I will say quite frankly that I believe that a National Probation Service along the lines that we are contemplating will have far more status and influence on policy than the service did as, if I may say, the poor relation of NOMS within the Prison Service. Under our new structure, the National Probation Service will have within NOMS direct reporting to the Secretary of State, and I think that that is an advance on what has gone before. My noble friend Lady Hamwee also welcomed mentoring, and I take to heart the importance of getting a complete buy-in to this from prison staff.

I suspect I shall run out of time for all the other issues. We are trying to give discretion to the courts when they are sentencing. Applying the provision to all offenders then setting the appropriate level of supervision is a much more practical approach than deciding at the time of sentencing not to supervise an offender and then realising too late that they actually pose a risk of reoffending and need supervision. A blanket, one-size-fits-all type of supervision will not be applied; there will be proportionality and judgment in taking this forward. The noble Lord, Lord Beecham, gave an example of somebody who has been in prison for an offence that is unlikely to be recommitted and has a minimum requirement for supervision: that is exactly what will happen.

My noble friend Lord Dholakia, the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Healy, spoke about the danger of raising the threshold for imposing custodial sentences. The Bill is focused on improving rehabilitation for those whom the court decides need to go to prison. We have already made changes to the community order in the LASPO Act and the Crime and Courts Act to ensure that sentencers have tough community sentences at their disposal. The fact remains that, as the noble Lord, Lord Ponsonby, said, some people need to go to prison, even if only for short periods. The current custodial threshold is already high. The court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that a final community sentence cannot be justified. Other matters on the details of application would be better left to be dealt with in Committee.

The noble Baroness, Lady Berridge, asked me specifically whether 14 days committal for breach activates its own 12 months of supervision. It does not: committal is the ultimate sanction for breach but the objective is to get the offender back on to the original rehabilitation programme. That also covers how we intend to extend this to 50,000 offenders and apply it with a sense of proportion in each specific case.

On the question of women, we have, through my honourable friend Helen Grant, taken on a women’s advisory board and will be taking forward proposals on female offenders. I welcome the opportunity to discuss this in Committee.

A number of noble Lords, including the right reverend Prelate the Bishop of Newcastle, the noble Lord, Lord Beecham, my noble friend Lord Dholakia and the noble Baroness, Lady Berridge, raised concerns about the participation of small charities. Our reforms will open up the probation service to a far wider range of potential providers. We want to encourage partnerships between voluntary or charitable organisations and between VCs and the private sector. In reply to the right reverend Prelate the Bishop of Newcastle about faith group involvement in rehabilitation, I recently went to Liverpool as a guest of the right reverend Prelate the Bishop of Liverpool and saw some of the projects being run there. The noble Baroness, Lady Healy, may be interested to know of Adelaide House, a very interesting project for the resettlement of women offenders. I want to put on record my appreciation of all the faith groups, which already have a network and a committed flock who readily make themselves available for rehabilitation work. That is something we want to work with and build on. In St Albans and Norwich, which I have visited in the past couple of years, the cathedrals are being used as centres for getting the various groups together on projects that work.

Lest I get into trouble for going on too long, I will just deal with the question of payment by results. Our payment mechanisms will ensure that providers have to work successfully with all offenders, including the most prolific and hardest to help, if they are to be paid in full. There will be a fixed fee for service, ensuring that they deliver the sentence requirements, and licence conditions for every offender. The remainder of their payment will be dependent on the reductions they make in reoffending. To be paid in full, providers will need to achieve an agreed reduction in both the number of offenders who go on to reoffend and the total number of offences committed by those in their cohort. So they cannot just focus on the easy wins; they will have to work with the most prolific offenders and keep working with those offenders who have already reoffended. We will be developing the details of our payment mechanism in discussions with providers and practitioners. I am sure that will be developed in Committee.

[Lord Beecham]

Could the noble Lord clarify whether it is the intention to bring those details back to the House or to Parliament for approval? In what way will there be parliamentary scrutiny of the detail?

[Lord McNally]

Those are matters of contract with the providers, but the noble Lord can probe me further on that in Committee, when I will try to give more specific answers.

It does not surprise me, given the speakers list today and the range of experience and expertise on view, that a lot of questions have been asked. I hope we can delve deeper into this in Committee. I do not accept that this is not worth pursuing. Most people have welcomed the objectives and, as I have told the House before, we must accept that, in these straitened times, the department cannot call on other resources to fund ambitious programmes. However, we are spending just less than £1 billion on the wide range of rehabilitation services. We have heard about holistic approaches and making sure that we have buy-in from other departments and from local government; these are all important to its success and I passionately believe it is worth trying. I understand the dangers but, in the end, you can spot so many dangers that you are paralysed. I do not believe that is the right approach. We should press ahead with this, let this House use its expertise to examine it in detail and see if we can put in place a piece of legislation that will give the framework to bring in ideas, flexibility, innovation and value for money in an area where there is a great deal of common agreement about objectives, as today’s debate has shown. As we take this Bill forward, our job is to see if we can tease out the practicalities so that it is also effective. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Crime and Courts Bill [HL]

Lord McNally Excerpts

Tuesday 23rd April 2013 Lords Chamber

Moved by

[Lord McNally]

That this House do not insist on its Amendment 131A, to which the Commons have disagreed and do agree with the Commons in their Amendments 18A and 131B in lieu.

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

I beg to move Motion A standing in the name of my noble friend Lord Taylor of Holbeach.

Noble Lords will recall that when this House considered the Commons amendments to the Bill on 25 March it accepted a series of Commons amendments that form part of the cross-party deal on Leveson and ultimately seek to establish an incentive-based, self-regulatory system for the press as envisaged by Lord Justice Leveson.

In advance of the debate on 25 March, the Government recognised that there was continuing concern in relation to the impact of the new system on small-scale blogs. Indeed, Lord Justice Leveson himself was clear that he did not expect very small publishers to join the new self-regulatory body. In recognition of the continued debate around the extent of the definition of “relevant publisher”, this House accepted the government amendment, Amendment 131A, to allow a period of further reflection over the Easter Recess and thereby ensure that the issue remained in play and could be discussed further in the Commons during the next round of ping-pong.

It might at this stage be helpful to remind noble Lords briefly of the context of these further amendments and explain the rationale behind the definition of relevant publisher. At present, four interlocking tests serve to define who is, and is not, a relevant publisher and therefore affected by the system of incentives. A relevant publisher must publish news-related material, which must be written by different authors, be subject to editorial control and be published in the course of a business, whether or not carried out with a view to profit.

Further to this, a number of specific exclusions have also been set out in the new schedule provided for in Commons Amendment 131. These exclusions include special interest titles, scientific journals, publications by public bodies and charities, book publishers and company news publications. However, the provision as drafted raised concerns on the part of small-scale blog sites that they could be caught by the definition of a relevant publisher, and that this was not an outcome we sought in establishing the definition. We have now had the opportunity to hold discussions with a number of relevant parties to understand their concerns about the extent of the relevant publisher definition. These were valuable discussions and Amendments 18A and 131B agreed yesterday by the Commons reflect the outcome of those discussions. I can also confirm that the amendments were agreed in advance on a cross-party basis.

Amendment 131B develops the list of exclusions from the definition of relevant publisher. Specifically, it exempts microbusinesses where they are either a blog or where their publications are only incidental to their other business activities. Microbusinesses which publish news-related material that is incidental to the main activities of their business are also exempted, whether they do so online or offline. The definition of microbusinesses in this amendment captures any business with fewer than 10 employees and a turnover of less than £2 million. This definition is frequently used by the Department for Business, Innovation and Skills. We consider that measuring both the number of employees and the turnover of an organisation, and setting the bar at this level, provides the most appropriate proxy for potential impact and harm and ensures that the incentive system is proportionate.

The aim is to make certain that the incentive system affects only those publishers Lord Justice Leveson intended to capture and that, by extension, many blogs, small web forums and think tanks will fall resolutely outside the incentive framework. Noble Lords will appreciate that it is, of course, ultimately and properly a matter for the courts to decide in any particular case whether a publisher falls within the revised definition of a relevant publisher. It is worth noting here how blogs may be perceived to be different from, for example, the online edition of a newspaper. Blogging takes many forms and is an evolving concept. However, there are some key features which distinguish blogs, even where they are edited and multiauthored, from online news reporting. A blog is used primarily for the expression of opinions, comments or personal experiences by an individual or group of individuals. Multiauthored blogs usually cover a single subject of interest, such as food or fashion, or a particular viewpoint, such as a political blogsite. Blogs do not usually report in a factual or neutral way on news or current affairs but are led by the personal views and voice of the individual or group of individuals concerned. The amendment intentionally contains no definition of a blog. It will take its natural, commonly understood meaning and, in the usual way, the term will ultimately be subject to interpretation by the courts.

Amendment 18A allows those parties not captured by the new exemption to benefit from the incentives around exemplary damages and costs, should they choose to join a recognised regulator. We consider this ensures that the system is fair and that those parties not captured by the definition can remain competitive. By joining a recognised regulator, parties not captured by the definition will now have the opportunity to benefit from the system of incentives we are putting in place.

Before concluding my remarks, I will clarify again the effect of the definition of “relevant publisher” on some other interests, in particular news aggregators. It is not our intention that these provisions should capture news aggregators such as Yahoo!, MSN or Google. News and content aggregators who license or otherwise acquire news-related content from third parties control this content only in so far as they decide how to present it in its totality to the end-user. To that extent, they are not subjecting the material to “editorial control” as defined in the provisions.

Lord Justice Leveson did not intend services that provide a platform for bloggers to post content to be captured. Again, the control that is exercised by aggregators here is limited to the high-level presentation of the content. It is for these reasons that news aggregators are not intended to be captured by our definition. Likewise, the definition is also not intended to capture political parties. These were not the target of Lord Justice Leveson’s reforms and it has not been the Government’s intention to capture them. In order to qualify, an organisation must meet all four tests in the definition: it must be publishing news-related material; the material must be written by different authors; it must be subject to editorial control; and it must be carried on in the course of business. An individual MP who runs a blog site should also be safely outside the definition as they would be unlikely to qualify for the four tests. If for some reason it was felt that they did, they would also be able to look at the microbusiness exemption.

It is also likely that many smaller political campaigning organisations will be able to take advantage of the new microbusiness exemption. They will qualify if they are microbusinesses and operating a multiauthored blog. If they are operating a multiauthored blog but publication of news-related material is incidental to their main activities, they will also be exempt.

I would like to underline that the activity of running a web forum is also not caught by this definition. I draw noble Lords’ attention to the additional provisions in the legislation which explain that the moderation of websites does not qualify. This is also true of blogs if they are posted without the exercise of editorial control. Therefore, a site like Mumsnet, to the extent that it runs a blog forum, is not caught by these provisions. However, any site, including Mumsnet, that moves into commissioning and publishing news stories may be caught by the definition.

I hope that this has helped to provide some clarity on who it has been the intention to capture in the definition and, equally importantly, who is not caught. I believe that these provisions provide a proportionate approach to implementing a crucial part of Lord Justice Leveson’s reforms. I commend these amendments to the House.

[Lord Avebury]

Before my noble friend sits down, perhaps he could help me on material that is published in the cloud. He went into very helpful detail on blogs, but material can be aggregated in the cloud in specific folders. Can the Minister say whether that is exempt in the same way that blogs are?

[Lord McNally]

I am not as au fait as the noble Lord and I have only just come to terms with clouds and things like that. What exactly is his concern?

[Lord Avebury]

Would material which is aggregated in a cloud folder with something such as Dropbox, where you can put a number of different items which may be news or other kinds of material, be exempt in the same way that blogs are?

[Lord McNally]

I am reliably informed, post haste, that such aggregates in clouds are not covered. If by any chance that is not true I will write to the noble Lord and make sure the letter is circulated to the House. I cannot see over my shoulder but I sincerely hope that the Box is currently nodding firmly.

[Lord Stevenson of Balmacara]

I can inform the Minister that the Box looked absolutely transfixed by that recent exchange. I do not know who is more surprised, them or us, by the ability of the noble Lord, Lord Avebury, to come to the white heat of the technological revolution and ask a question that has stumped us all. On this side of the House, we would venture to say that we think they are covered, but that just adds a little piquancy to the debate which will, I am sure, be resolved before we get too far down the line.

Following the Leveson trail is a bit like appearing in “Rosencrantz and Guildenstern are Dead”. We pop up at odd times as other events seem to be filling the spaces. We pay a small contribution to it and then we discover that the whole event has moved on, another Bill has appeared, and yet another set of amendments appears which look awfully like the ones we have just been discussing. Only earlier today, we knocked out one set of amendments, yesterday we could have done the same, today we hope they will stick. I want to reassure the Minister that we will be supporting him in this event and he will not need to use the wiles he displayed when he almost reached across the Dispatch Box to my noble friend Lady Hayter to try to persuade her not to push her vote. The vote was unsuccessful so he won out in the end anyway: he has all the luck.

As the Minister has explained, these amendments, inserted into the Bill late in the process, provide for new rules on exemplary damages and costs. They are an essential part of the cross-party agreement on a royal charter which is part of the new framework of independent self-regulation, guaranteed by law, as recommended by Lord Justice Leveson. This part of the Bill aims to provide publishers with incentives to sign up to the new system of self-regulation that should meet the criteria set out in the royal charter. Publishers that join a recognised regulator will receive protection from the award of exemplary damages in media disputes, the opportunity to use an arbitration service and cost benefits from having access to this service. That is one reason why it would benefit local as well as national newspapers. If a complainant chooses not to use the arbitration service, they can still be liable for costs even if they win.

Lord Justice Leveson’s report was mainly about the press but the original drafting of this Bill had the unintended effect of catching blogs. That said, Lord Justice Leveson did express the hope, in Recommendation 73 of his report, that online publishers would also join a regulator. The Bill therefore needs to be amended to ensure that exemplary damages did not apply to blogs and they could receive the benefits of joining a recognised regulator. In recognition of the fact that this is a complex area, your Lordships’ House agreed a placeholder amendment on 25 March. The Government’s decision to hold a mini consultation and pause for reflection to consider how the Bill should deal with the blogosphere was sensible and we agree with the policy objectives that the Government are seeking to address to exempt micro businesses from the definition of relevant publisher where they are a blog or where their publications are merely incidental to their other businesses and to enable such micro businesses to receive the benefits and cost incentives of joining a recognised regulator. The Minister has been helpful in setting out a number of accompanying thoughts around these points and the issues relating to what would and would not qualify, and I think they will bear further consideration once we see them written up in Hansard.

However, the main point is that the amendments we are now looking at and which we support define a small blog as one whose turnover is below £2 million and has up to 10 employees. It exempts such businesses from exemplary damages and enables them to benefit from the cost advantages of an arbitration service if they join a regulator, and that last point will be particularly welcome to the community. As I say, we support the proposals, and I am grateful for the manner in which they have been pursued within the all-party agreement which has underpinned the whole process, so we will not be dividing the House.

In the time available, I would like to make a couple of ruminations about some of the issues that we are talking about today, and within that are two questions to which I hope the Minister will be able to respond. The first is that the digital world as we know it is changing rapidly and the complexity and parliamentary arithmetic of changing the royal charter means that it will be hard to alter the legislation after this Session, so it needs to be right. What consideration have the Government given to the health and future of the blogging industry, and can the noble Lord share with us the Government’s thinking on this point? I understand that the indicators for a micro-business have come from a definition used by BIS, and in that sense they are not specific to the blogosphere. I have had representations already, and I am sure that other noble Lords will also have received them, from those who argue that the figures being used are on the high side, as rarely do we find 10 employees or even an annual turnover of £2 million in a blog company. That would make for a very healthy company, but it is not how the sector operates. Can the Minister estimate roughly how many blogs this definition would capture at present?

I turn to a related but more general point. We are talking about an industry that is in the process of change. For example, the print circulation of newspapers is estimated to shrink by at least a quarter in the next five years and yet we are facing a rather bizarre situation where newspapers are exempted the full 20% rate of VAT on print sales despite the fact that in many cases online traffic now represents the majority of their audiences. This is something which is bound to grow as we go forward. In fact, we are fast approaching a situation where what we previously believed, which is that we in this country do not tax reading, is becoming the reverse of what will happen. Those who read using electronic means, which will include those who are caught by this amendment, will be paying 20% VAT. Is this something that the Minister can say is under consideration, because it seems to me that we will need to face up to it before too long?

I am very grateful to the Minister for mentioning Mumsnet because it was the subject of discussions in another place, and others have raised it. The break point that he expressed is one to which we may need to return. Perhaps when he concludes he will reflect on this. At what point do those who blog and use it as a campaigning tool get caught? There is some doubt in what he has said about whether Mumsnet, which is not a charity but exists largely to circulate material that is in favour of a particular point of view, could possibly be caught by this exception. It is one of a number of areas in which, as the Minister has said, time will show us what emerges. However, a little more clarity at this stage would be helpful.

Finally, the Minister was keen to assert that it would not be sensible at this stage to define a blog. He was then caught quite quickly by a question related to blogging which illustrates that sometimes it might be sensible to have in primary legislation clear definitions which we can all use. I understand and support the idea that it is probably wrong to try to be definitive at this stage and that we should see how things go, but if that is the case, are there are any thoughts about how the Government might consider revisiting the issue within a reasonable time if it turns out that we need to move? After all, as I have said, this is the digital age and things are moving fast. What is a blog today may change into something else, and we want to be sure that we have the flexibility which I do not currently see in the Bill.

[Lord McNally]

I thank the noble Lord, Lord Stevenson, not only for that reply but for the constructive role he has played in getting us as far as we are today. It is important to retain an all-party approach as we take this through. The noble Lord asked how many blogs this amendment will cover. We cannot provide an accurate estimate because blogs are constantly started up and then stopped. However, we feel that this is the right figure in order to exclude all those who we hope and intend to exclude. On the definition of a blog, I was tempted to call in aid that used by Clement Attlee when he wanted to exclude Trotskyists from the Labour Party. They said, “How do we know who are Trotskyists?”, and he said, “It’s a bit like an elephant—when you see one, you know one”. In a way, we are groping with blogs in an age of technology that is constantly and frighteningly rapidly changing.

We have tried to get some key features which distinguish blogs from online newspaper reporting. A blog is used primarily for an expression of opinion. Multi-authored blogs usually cover a single subject of interest. In all cases, blogs do not report in a factual and neutral way on news or current affairs but are led by the personal views of the individuals. While an online news site may contain comment, opinion or bias, comment pieces are not its principal focus. What constitutes a blog may change over time as convergence increases.

It is a difficult area. When we debate these areas, we often point out that future-proofing is virtually impossible. We hope that the definition I have given today has been sufficiently carefully drafted to provide the maximum possible clarity to organisations seeking to know whether they are caught. We have produced a handy set of questions on our website to help organisations to work this out. This is intended as guidance only. Ultimately, as in the case of all legislation, the decision on whether an organisation comes within or outside the scope of any particular piece of legislation will fall to the courts. The intention of the definition is to capture news publishers who were the focus of Lord Justice Leveson’s inquiry and his subsequent recommendations. They are intended to act as the key incentive for those publishers to join the new press regulator, while also protecting those not intending to join.

On Mumsnet, protection is the interlocking test, but such an organisation may branch out or develop a kind of activity which takes it into the realms of news and newspapers—a news media. Again, we would have to be flexible. If an organisation develops in a way that makes it a news organisation, it would have to consider its position. Lord Justice Leveson, in making his recommendation and recognising the changing architecture of our media, specifically said that he hoped news organisations that were primarily online would consider themselves willing to join any new regulator.

Parliament at both ends of the Corridor has done a good bit of business in dealing with a specific concern that was raised. I thank the noble Lord, Lord Stevenson, for his very constructive and helpful approach, not only at the Dispatch Box, but in bilateral discussions.

Motion A agreed.

Defamation Bill

Lord McNally Excerpts

Tuesday 23rd April 2013 Lords Chamber

Moved by

[Lord McNally]

That this House do not insist on its Amendments 1, 15 and 16, to which the Commons have disagreed for their Reason 16A.

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

My Lords, Amendments 1, 15 and 16 constitute a partial enactment in statute of a number of the recommendations made by Lord Justice Leveson in his report on the culture, practices and ethics of the press. The reasons given by the other place for disagreeing with these amendments reflect the fact that, as the House will be aware, on 18 March cross-party talks were resolved successfully and a draft royal charter was agreed as the vehicle by which the recognition body should be set up.

Detailed criteria by which self-regulators would be assessed were also agreed, and provisions to enact Lord Justice Leveson’s recommendations on incentives in costs and exemplary damages have subsequently been included in the Crime and Courts Bill. A further “no change” clause has also been included in the Enterprise and Regulatory Reform Bill as a safeguard against political intervention with the royal charter. These measures have cross-party support.

I take this opportunity to address an issue that I know is of concern to the noble Lord, Lord Puttnam, on how provisions are being taken forward to provide access to justice and cost protection for those of limited means. It may be helpful to provide the House with an update on the action we are taking. As noble Lords are aware, we asked the Civil Justice Council to report on the issue of cost protection by the end of March. It has done so, and recommended that the regime of qualified one-way cost shifting, or QOCS, should be adapted to defamation and privacy cases. A number of adaptations are necessary, given the rather different nature and variety of defamation and privacy proceedings compared with personal injury claims. We are now considering the CJC report, and as your Lordships will appreciate this is quite a complex area. While the report does not represent a blueprint of the new rules to be applied, it does set out the issues that need to be addressed, and makes recommendations on how to address them.

It will be for the Civil Procedure Rule Committee to make the rules on costs protection in due course, once the Government have set out the way forward. My officials will work with the Committee on this. I am conscious that the CJC has not consulted on this issue, and I believe that we need to consult before we finalise the proposals. Our aim is therefore to work with the Rule Committee in drafting appropriate rules, perhaps with alternatives, on which we can consult more widely over the summer.

I know that the noble Lord, Lord Puttnam, will be interested in that consultation, and I will ensure that he and other noble Lords with an interest in this area are included in the consultation. Depending on the outcome of that consultation, we then aim to implement a costs protection regime later in the year.

I hope that provides reassurances to the noble Lord, Lord Puttnam, and to others, about the promises I have made about cost protection at various stages of the Bill. During our debate on the Crime and Courts Bill provisions on 25 March, both the noble Lord, Lord Puttnam, and the noble and learned Lord, Lord Mackay of Clashfern, indicated that they were happy for the Bill to complete its passage without Amendments 1, 15 and 16. I hope that remains the case, and that noble Lords will agree to the removal of these amendments. I beg to move.

[Lord Lester of Herne Hill]

My Lords, first I would say that we often refer to Fox’s Libel Act. I hope that when this Bill becomes law it will be referred to as Lord McNally’s Libel Act, because he above all has had the energy to drive it forward. He said at one stage that he would not allow the Bill to be overwhelmed by what he called the tsunami of Leveson. The reason why I strongly support Motion A is because it provides a way of avoiding being overwhelmed by the tsunami of Leveson. It removes what I consider to be unnecessary hostage-taking in some amendments to the Defamation Bill. It has now been freed in the Commons, and therefore I strongly support it. I have some difficulty with the reason, in a sense, because it says that,

“the draft Royal Charter … and … the Crime and Courts Bill and the Enterprise and Regulatory Reform Bill will be sufficient to implement the recommendations in Lord Justice Leveson’s report”.

I think that is completely true. Whether Lord Justice Leveson’s report will eventually pass muster is quite another question, but that is not to be debated now.

--- Later in debate ---

Moved by

[Lord McNally]

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A, but do propose Amendment 2B in lieu.

2B: Clause 1, page 1, line 4, at end insert—
“( ) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

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

My Lords, in speaking to this Motion, I shall speak also to Motions B1 and B2, tabled by the noble Baroness, Lady Hayter of Kentish Town, and Motion B3, tabled by my noble friend Lord Lester of Herne Hill.

Amendment 2 concerns two distinct but related issues which have already featured extensively in debates in both Houses during the passage of this Bill. These are whether there should be restrictions on the right of bodies corporate and other non-natural persons to bring an action in defamation, and whether any non-natural person which is performing a public function should be prevented altogether from bringing a claim in relation to a statement concerning that function. I shall focus my comments on government Amendment 2B and the other amendments that have been tabled, rather than on Amendment 2 in its original form.

Amendment 2B amends Clause 1 to make clear that a body trading for profit will satisfy the serious harm test only if it is able to show that the statement complained of,

“has caused or is likely to cause the body serious financial loss”.

In speaking to Lords Amendment 2 in the other place, the Government made it clear that although we were opposed to that amendment, we recognised the strength of feeling that exists on the issue of whether there should be a specific provision in the Bill requiring non-natural persons trading for profit to show financial loss, and that we would consider the point further. This amendment reflects the outcome of those considerations.

As I have explained at earlier stages of the Bill, we amended what was initially a “substantial harm” requirement to one of “serious harm” in order to raise the bar for bringing a defamation claim. The amendment therefore refers to “serious” financial loss to reflect that aim, and now links explicitly to the serious harm test. The use of the phrase “serious financial loss” makes it absolutely clear that the financial loss required to meet the serious harm test must itself be serious. By contrast, the reference in Lords Amendment 2 to “substantial financial loss” could inadvertently have had the effect of weakening what has to be shown to satisfy the test.

Secondly, the term that we have used to define those who will be subject to this requirement—

“a body that trades for profit”—

is a much clearer and simpler definition than that used in Amendment 2. These are the bodies that this House has expressed concern about, so we have phrased the amendment specifically and directly to meet those concerns. A vaguer formulation such as that in Amendment 2 would have risked inadvertently catching other bodies, such as charities, which are not the subject of concern. I believe that this effective and proportionate approach addresses the concerns that have been expressed in this House and elsewhere.

The Government are unable to accept Motions B1, B2 and B3. In relation to Motion B1, as noble Lords are aware, in the case of Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and central governmental bodies are already prevented from bringing actions for defamation. Motion B1 would add Amendment 2C, which seeks to extend that principle and put an absolute bar on any non-natural person performing a public function from bringing a claim in relation to a statement concerning that function. This would remove completely the right of a wide range of businesses and other organisations to protect their reputation. We consider that to deprive them of this right would be excessive and disproportionate. Although the amendment focuses on criticisms in connection with the exercise of a public function, that criticism could have a wider impact on the reputation of the business more generally. It is important to recognise that unjustified and defamatory allegations can cause considerable damage which affects all those connected to a business, including shareholders and employees.

--- Later in debate ---

[Viscount Colville of Culross]

I would like to express my relief that the Defamation Bill has finally been unblocked and returned to your Lordships’ House. I thank the noble Lords on both Government and Opposition Front Benches for their tireless efforts to make sure that the Bill reappeared in this place.

I strongly support government Amendment 2B. During my career I was a journalist, and I spent some time on small regional newspapers. There were a number of occasions when I felt the mighty weight of companies bearing down on my reporting. I am ashamed to say that on some occasions, even when I had a powerful and well supported case revealing wrongdoings by a company, the legal letters from the company’s representatives threatening libel action, and the uncertainly of the outcome under the present libel laws, meant that those articles were not published. We live in an era when business PR regards anything but abject praise as an attack on a company. It seems to me that an amendment which demands a threshold of serious financial damage to a company before it can sue for libel will allow a much greater atmosphere of transparency and openness when questioning its activities.

I support the amendment put forward by the noble Baroness, Lady Hayter, and I listened with great respect to the noble Lord, Lord Lester, as I always do. Why, if Northern Ireland is having such problems with this, should the rest of the United Kingdom suffer? Why should it not be allowed to have the benefits of the Bill? It extends the Derbyshire principle into statute rather than waiting for it to work through common law, as suggested. This amendment attempts to incorporate the Human Rights Act 1998 which says that a private company performing public functions should be considered as an organ of the state. The ever increasing expansion of private companies being subcontracted to run public services makes it ever more urgent that the Derbyshire principle should now be established to cover those companies as well.

I have a short example. Last year, the Guardian received evidence from whistleblowers about the company, Serco. The allegations stated that the private health care provider, Serco, which runs the GP out-of-hours service on behalf of the NHS in Cornwall, had not employed enough skilled staff to meet patients’ needs and that the company was altering performance data to show a more positive outcome. Throughout May of last year the solicitors, Schillings, on behalf of Serco, sent a series of letters to the Guardian threatening it with libel action if it went ahead and published the evidence. The Guardian ignored these threats and published a series of articles by Felicity Lawrence. Then in July 2012, a report by the Care Quality Commission found that Serco had indeed not employed enough qualified staff to meet the patients’ needs, and a National Audit Office report this year found that there was evidence that the performance data had been altered to overstate the service’s performance.

The Guardian is big enough to resist these libel threats, but a smaller paper or website might well not have been able to do so. Had the service been run by the NHS it could not have issued those threats, but under the present law Serco was able to do so. Why should a company carrying out public functions be able to threaten critics with libel—possibly using public money—while a public body itself carrying out those functions would not be able to do so? In considering how to vote, I ask your Lordships whether we should not provide a level playing field in this matter.

[Lord McNally]

My Lords, I am very grateful for the contributions that have been made. This is not the Bill that my noble friend Lord Lester introduced into this House just over two years ago. It is not the Bill that the Government produced in draft for pre-legislative scrutiny. I am proud that it is a Bill that has gone through every process of political and parliamentary procedure, from a resolution at a Liberal Democrat conference to being an Act of Parliament, if we are successful today. However, this means that people around the House and campaigning groups around the country have not got everything they wanted from this Bill. One of my political heroes was the late George Woodcock, the general secretary of the TUC, who once said that good trade unionism was a series of squalid compromises. I do not suggest that the compromises that we have arrived at thus far are squalid. Nevertheless, when looking at a Bill such as this, it is necessary to remember the various pressures—some of which have been reflected in the useful debate that we have had—before making a judgment about challenging the other place once more.

The noble Baroness, Lady Hayter, raised the matter of cost still being in doubt. I would personally like to have had a clearer position, but we are working through on this. I have given enough assurances that we will make sure that the cost issue is clearly dealt with before this Bill comes into force. There are enough indications of the way that Parliament, Lord Justice Leveson and the CJC want to go that I am pretty confident that we can get a cost protection measure in parallel with the Bill which will satisfy the wishes of this House.

Perhaps I may also deal with an issue that has been raised in a number of interventions, including by the noble Viscount, Lord Colville. We have a dilemma that has happened under successive Governments. It is that what was once a clear line between the public and private sectors is increasingly becoming blurred, wavy, or even dotted. It is not as clear as it once was. I personally believe that at some stage we are going to have to deal with the anomalies created by the blurring of those distinctions and the fact that far more private sector companies carry out public service duties. However, I hope from what my noble friend Lord Lester said, and I said, that there is sufficient argument to say that for the moment we should rest on common law to deal with this matter. I fear that if we try to push too hard to implement this into statute now we will not convince the other place.

On the workings of the Civil Procedure Rule Committee, another matter that the noble Baroness, Lady Hayter, mentioned, it is not true that we will have to wait two years for case management. We are hoping to have guidance on case management in place, as with the costs, by the time that the Bill comes into force later in the year.

Before I move on, I am pleased to see the noble Lord, Lord Browne, in his place. I want to put on record that the noble Lord, Lord Browne and the noble Baroness, Lady Hayter, are a model of constructive opposition in the way they have handled this Bill. I hope that does not ruin his reputation. He will never recover from that.

The noble Lord, Lord May, referred to Committee stage as being a perverse pleasure. I think I know what he means, but it was a pleasure and an honour to have so distinguished a scientist contributing to our deliberations. It is an area which, along with the academic freedom that the noble Lord, Lord Bew, referred to, has been among the things that I have been most concerned that this legislation should try to protect.

The noble Lord, Lord May, referred to the question of Dr Wilmshurst. Another name that has often been referred to has been Simon Singh. They have been the cause célèbre about the deficiencies in our law. I have constantly said to my officials, “How will it be different after our Bill becomes an Act?” It will be different in both those cases. People pursuing them would have to satisfy the serious harm test. The defendants would have the new public interest defence contained within Clause 4 of the Bill. Alongside the Bill we are introducing cost protection measures to provide additional protection to those with limited means. More generally, to support the scientific and academic debate, the Bill also creates a new defence against libel for peer-reviewed material in scientific and academic journals and extends qualified privilege to reports of scientific and academic conferences.

Although I am not sure that we will ever be able to protect everyone from the speculative chilling solicitor’s letter, I hope that people receiving that chilling letter will realise that the law has changed. It has changed to protect them and build in protection for the Dr Wilmshursts and Simon Singhs of the future.

--- Later in debate ---

[Lord Lester of Herne Hill]

I am grateful to my noble friend. Although my noble friend is not a lawyer, and has the great advantage of not being a lawyer, would he agree with me as a matter of common sense, that it cannot make the slightest difference whether it is the prison department or a private contractor managing the prison so far as the Derbyshire principle is concerned, because the Human Rights Act makes that quite clear?

[Lord McNally]

I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.

He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.

The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.

I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.

The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.

[Baroness Hayter of Kentish Town]

My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.

I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.

As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.

--- Later in debate ---

[Lord McNally]

Before the noble Baroness sits down—no, she is absolutely right—and before she lures Lord May and others into her Lobby, would she confirm that what we are doing in this Bill would have significantly assisted both Simon Singh and Mr Wilmshurst? We have not left the situation as it was. We have made significant changes and built in significant protections, which should be taken into account before people decide which way to vote.

[Baroness Hayter of Kentish Town]

If they read my article, they would see that it says that this Bill has gone a long way towards what we want and it is only a shame that it is not perfect. As somebody who likes perfection, I am going to ask the House if, particularly on the first amendment, we should ensure that organisations carrying out a public service should not have the right to sue for libel.

Prisoners: Indeterminate Sentences

Lord McNally Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what further steps they will take to release prisoners serving indeterminate sentences for the protection of the public in the light of the recent decision of the European Court of Human Rights in James, Wells and Lee v UK.

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

My Lords, the European Court’s judgment did not find sentences of imprisonment for public protection to be unlawful. Therefore, it remains for the Parole Board to determine whether to direct the release of an IPP prisoner once he has completed his tariff. The National Offender Management Service continues to improve opportunities for IPP prisoners to progress towards release.

[Lord Lloyd of Berwick]

The noble Lord will know that currently more than 3,500 IPP prisoners have passed their tariff date and are waiting to come before the Parole Board. Does he accept that, at the current rate of release on licence, which is running at about 400 a year, it will be nearly nine years before the backlog is cleared? If so, is there not an overwhelming case for the Lord Chancellor to exercise the powers he was given under Section 128 of the 2012 Act to vary the release test to make it easier for these prisoners to satisfy the Parole Board?

[Lord McNally]

My Lords, the noble and learned Lord’s figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord’s point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.

[Lord Thomas of Gresford]

My Lords, at its conference in 2012 the Prison Governors Association passed a motion overwhelmingly welcoming the ending of what it described as the “iniquitous” IPP system. It also said that unless some action is taken either to resource appropriate interventions to reduce perceived risk or to review the Parole Board criteria on what constitutes risk to the public, existing prisoners will face disproportionately long sentences. What action have the Government taken?

[Lord McNally]

My Lords, I think the key word is “risk”. The fact that these prisoners were given IPP sentences indicates that it must have been in the mind of the judge imposing the sentence that they posed a significant risk to society that had to be dealt with before they could be considered for release. That was the intention behind IPPs and that must remain uppermost in our minds when deciding the future of these prisoners. However, we are bringing in accredited courses, which may help to make the point that they are available for these prisoners. Other interventions such as work, education and employment may also provide evidence of reduced risk. NOMS is investing in interventions that have the most beneficial impact in reducing risk, and priority for those programmes is given to IPP prisoners.

[Lord Wigley]

Does the Minister accept that these prisoners are in a totally invidious position, a Catch-22 position, in that they have to undergo rehabilitative courses in order to be considered for eligibility for parole, yet the vast majority of them have not been offered such courses? Does what he said a moment ago about new courses mean that a substantial number of these prisoners will now be offered them?

[Lord McNally]

My Lords, within the constraints that we are having to operate in we are trying to introduce new courses. I fully accept that one of the reasons we abolished IPP is that it contained that Catch-22 whereby you had to fulfil certain courses, which may not be available, to qualify for release. I believe that NOMS is doing its best to bring in new systems and that there is greater flexibility in qualifying for release. However, I go back to the point that we are dealing with men who were sent to prison because the judge who sentenced them judged that they posed a serious risk.

[The Lord Bishop of Liverpool]

My Lords, one of the problems is that when a prisoner is transferred to another prison, they find that there is no accredited course in that prison. Who has the specific responsibility for ensuring that when a prisoner is transferred, there is an accredited course in the prison to which that prisoner is transferred?

[Lord McNally]

I understand that almost all IPP prisoners now have a managed programme to help them prepare for release. That should be part of sentence planning. But, again, I freely acknowledge that in some cases prisoners have been moved for other reasons and then find that they cannot complete the relevant courses. We are trying as best we can to iron out of the system what the noble Lord referred to as a Catch-22 situation so that prisoners can qualify, but to leave with the Parole Board the overriding assessment of whether they are suitable for release or whether a risk remains.

[Lord Beecham]

My Lords, what is the Government’s estimate of the number of prisoners to whom the judgment in the European Court of Human Rights case of James, Wells and Lee v UK applies? Have the Government estimated the cost of providing sufficient resources to comply with the requirement to ensure that prisoners have an opportunity to progress and to be properly assessed for release on licence?

[Lord McNally]

I am not sure of the number of prisoners to whom the judgment applies, but cases are being taken. It may be of interest to hear that two of the three prisoners involved in that case are now back in prison due to breaching their terms. We are being very careful to make sure that the system is flexible enough and effective enough to allow prisoners to earn—that is the reality of it—their release. However, we have to consider this issue in the context of prisoners who were given this sentence, when it existed, because they posed a threat to the community. It is for the Parole Board to assess whether they are fit for release.

Civil Legal Aid (Procedure) Regulations 2012

Lord McNally Excerpts

Wednesday 27th March 2013 Lords Chamber

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

My Lords, when the noble and learned Baroness, Lady Scotland, sat down, having made her usual very powerful indictment, there was a growl of approval because across the House there is an abhorrence of domestic violence and a desire to help the vulnerable, particularly the disabled. However, I ask the House not to take that sympathy into an assumption that all this is being put at risk by a callous and uncaring Government. As I pointed out before, the legal aid bill will still be running at something like £1.7 billion when all this is over, and criminal legal aid is now at just over £1 billion. However, I will not start quibbling over figures with the noble Lord, Lord Bach, as he demonstrated his command of figures earlier in his speech.

I contest, and worry about the impression that will be given because of strong campaigning, that legal aid is somehow removed from these areas. I will try to deal with the points that were made by the noble and learned Baroness Lady Scotland and the noble Baroness, Lady Grey-Thompson. I will also address the points made by the noble Lord, Lord Beecham, which were made with his usual quiet courtesy. The point that I made about remoteness, which is a cold, hostile kind of word, is that we underestimate what new technologies can do to help with access to justice. That is the point I was making. On the point he made about mediation, I certainly am not overclaiming for it. Mediation is certainly not a cure-all. However, I thought that he threw in one very interesting statistic: only 5% of family law cases are contested. That is worth keeping in mind.

On the points made by the new president of the Family Division, I have been in this job long enough to give due deference to the separation of powers and the opinions of the judiciary. Of course, he is right to be very concerned, but I am not sure that the term “desperately unprepared” is fair. I know the amount of effort that has gone in, in my department, to make sure that these changes can be introduced as effectively as possible and that the help we want to give is given to the people who need it.

I will deal first with the points made by the noble and learned Baroness, Lady Scotland. Perhaps I should clarify, for the benefit of readers of Hansard, that perhaps my opening remarks should not have been made and we should have gone straight to the noble Baroness, Lady Grey-Thompson. So my reply came at the beginning of the debate. My plea is that I have been in the House for only 15 years and am still getting used to some of its more arcane procedures. Although my reply was all-encompassing, it probably did not address some of the specific issues that were addressed by the noble Baroness, and by the noble and learned Baroness. Therefore, I will do that now.

Because the noble and learned Baroness, Lady Scotland, deploys such ferocious talents in making a case against what the Government are doing, I worry that she will lead vulnerable women affected by domestic violence into the fear that somehow legal aid will not be available. I am sure that that is not her intention, but it could happen. I will point out that in the regulations that have been published there are 10 separate, distinct qualifications for legal aid. I will not trouble the House by reading them all. They are very precise, and it is simply not true to say that women who are subject to domestic violence will not be able to get legal aid. They will be covered by a wide range of qualifications for entry through the gateway. We should let the system start.

In answer to the point made by the noble Lord, Lord Beecham, and others, we will monitor the impact from day one.

[Baroness Corston]

My Lords, is the Minister suggesting that my noble and learned friend Lady Scotland is either scaremongering or not telling the truth?

[Lord McNally]

The noble Baroness is putting words into my mouth. When you start talking about death and saying that people will die because of this, it raises the temperature. The noble and learned Baroness is entitled to make her point—and I certainly would not like her to prosecute me. However, there is a case for the defence and I will try to make it. Part of the case is that the regulations we have set down have 10 specific areas that will qualify women for help in domestic violence cases.

In making her case, some of the figures that the noble and learned Baroness gave went beyond the issue of providing legal aid in family law cases to the much wider problem, which we all acknowledge, of domestic violence and violence against women in our society. It is unfair to use the figures and statistics for domestic violence in general to imply that in the specific and narrow area of legal aid in family law cases there is not a wide range of provisions. I refer the House to the Civil Legal Aid (Procedure) Regulations 2012. For the benefit of the House, perhaps I can write to the noble and learned Baroness and put a copy in the Library, setting out the various qualifications for access to legal aid in domestic violence cases that there will be under our reforms.

Both the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Beecham, raised the question of a possible £60 charge. We have been in negotiation with the professional organisations. As was rightly said, the BMA has raised questions. However, we are asking applicants to provide a simple, standard template letter from a doctor or a nurse—not a medical report—and we see no reason why the charge for a letter from a GP should be more than a simple administration fee. We have arranged for communications to go out from the Royal College of General Practitioners, emphasising that GPs should respond as rapidly as they can and be as sensitive as possible to the needs of applicants. I invite the BMA to give similar guidance as part of its contribution to dealing with these issues.

The case cited by the noble and learned Baroness, Lady Scotland, was certainly harrowing. It is impossible for me at the Dispatch Box to deal with this kind of case. From what she described, I would be surprised if, even under our reforms, there would not be access to legal aid, including a protective injunction that could be applied for in the circumstances that she described. On the question of evidence requirements, we will keep them under review and would welcome evidence of how they are operating.

The noble and learned Baroness raised the issue of simultaneous orders, and whether one could apply for separate orders at the same time. It is possible to combine such proceedings. However, the funding may not be available for the entirety of the proceedings. Funding is available for non-molestation order applications, but in order to receive funding for a matter falling within paragraphs 12 or 13 of Part 1 of Schedule 1 to the Act, the applicant would need domestic violence evidence. I gather from the briefing that I asked for that the noble and learned Baroness may be right: there may have to be two trips. Certainly we will look at whether that will add costs and time to the process.

Are we putting training in place? The Department of Health has worked with the Royal College of GPs to develop an innovative e-learning course on violence against women and children. The course was launched in Liverpool in October 2011. It consists of four modules that aim to help clinicians provide an appropriate healthcare response to domestic violence. There is a similar training for police to spot evidence and act on it.

On the point about cross-examination, judges have certain powers to address the situation, including special measures if necessary: for example, by intervening to prevent inappropriate questioning or by having questions relayed to the witness rather than put directly. The noble and learned Baroness asked about access, and whether there would be an identifiable person co-ordinating complaints of domestic violence in each area. The answer is yes. The guidance provides for links to be provided to the relevant multiagency risk assessment conference, which will be chaired by someone who will take direct responsibility in that area.

The noble and learned Baroness, Lady Scotland, mentioned the problem of women’s refuges being full. It is right that, at the moment, that cannot be used as evidence, but I should like to take that back as part of the early review. She also made the specific request about equivalence in cross-undertakings. There is no provision that cross-undertakings must be of equivalence. However, the cross-undertaking must be given under Section 46 of the Family Law Act 1996. Where it is a general form of cross-undertaking, which is not made under Section 46, but, for example, to aid the smooth running of proceedings, it would not count as a cross-undertaking, but there would have to be equivalence in the cross-undertaking. I hope that that makes it clear.

--- Later in debate ---

[Lord Beecham]

My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?

[Lord McNally]

The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.

I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.

Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.

On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.

[Baroness Grey-Thompson]

My Lords, I thank the Minister for his introduction and his response, which were, perhaps, wrapped up together. I thank the organisations that provided me with some amazing case studies and the individuals who have been in touch and explained the immense difficulties that they are currently facing.

In thinking about bringing this Regret Motion, I was fortunate to speak to my noble friend Lady Campbell, who is in her place, who shared some of her experiences of the Disability Rights Commission. It operates a telephone advice line and has perhaps some of the most highly trained people in disability and equity, and they experience difficulties in understanding people with speech difficulties, perhaps because they have cerebral palsy, or with multiple impairments, who speak in a different way. She was able to outline some of their difficulties in being able to clarify their issues. A number of solicitors I spoke to said that people do not present their problems in an easy-to-understand manner. Mind, the charity, which has been part of this discussion, said that it is exceptionally worried that many people with fluctuating capacity could be excluded. A number of organisations have communicated their fear about people being able to access the telephone gateway.

I am a huge fan of technology. It is amazing, it is great if you can afford it, and it is even better if you know how to use it. Young people seem to be born with an ability to make it work, but that is not the case for perhaps many of us. If I look around your Lordships’ Chamber, we have, if I can say it, some of the most privileged people and the brightest, and those with access to the best education, knowledge and experience, but I wonder how many of us use technology. Think about it if you are a disabled person, if you are alone, isolated, going through great difficulty and with immense problems that you are trying to explain to someone else. We have a very long road to enable disabled people and old people to access some of this.

I am very passionate about special educational needs because I went through it. I fought to get into mainstream school before there was a system in place. My father used a single line in the report by the noble Baroness, Lady Warnock. He threatened to sue the Secretary of State for Wales over my right to be educated in a mainstream environment. He was educated and financially privileged. I look round at many of the people who will be fighting for the same thing for their children, and picking up a phone and trying to explain their children’s complex needs does not make any sense to me whatever. I know the noble Lord, Lord Freud, and the Minister have both said, in relation to disabled people, that the Government want to help and support those with the greatest need. I do not believe that that is the case.

The Minister also talked about reasonable adjustments. That is all very well, but it does not measure those who do not or cannot make the first phone call. The fact that the phone number is not free will make it exceptionally difficult for a number of people who do not have credit on their phones and who just cannot even contemplate picking up the phone. I am afraid that I am completely unconvinced by the idea of the third party and the Minister’s faith in that working. I find trying to explain complex needs to somebody who will then explain them to somebody on the phone very frustrating and disappointing.

I still believe that the exemption group is too narrow and that disabled people will increasingly be hidden away. In 2013, disabled people will start becoming invisible as they did in the 1960s and the 1970s when I was young. That is a cost I do not think is worth paying. I wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

Lord McNally Excerpts

Wednesday 27th March 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft regulations laid before the House on 4 February be approved.

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments.

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

My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.

Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.

The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.

The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.

I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.

I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.

Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.

Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.

The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.

Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.

However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord McNally]

My Lords, I thank the contributors to this debate. I have listened carefully to the points they have made. Perhaps I could turn first to the important issue raised by the noble Lord, Lord Bach, on how Parliament does its business and the consequences of its decisions. I would simply remind your Lordships—and the noble Lord had the honesty to do so—of what I said before the House voted on 3 December:

“My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not”.—[Official Report, 3/12/12; col. 490.]

I do not know how a Minister could be clearer in asking the House to consider that before voting.

Another point is that what my right honourable friend the then Lord Chancellor promised was to use his best endeavours to look for a concession. He came back with a concession which made its way into the final Act passed by Parliament. If the Opposition Front Bench ever returned to this side of the House, they would be as reluctant as we are to have reopened debate on the final settlements in any legislation by the use of fatal Motions. I believe that that would prolong the issue and put pressure on every Opposition to say, “The matter is not closed. You could pass a fatal Motion and that will get us a better offer”. I do not think that is the way that government can operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and keeping up pressures which, quite frankly, Oppositions would eventually find difficult to handle. The pressure groups, which quite legitimately keep the pressure on us, would say, “Well, it is not closed now because you could pass a fatal Motion”. That is the point.

It is always flattering to suggest that, secretly, I do not agree with the decision, but I actually do and in part because of my capacity as a business manager in this House. I believe that we gave the House a clear understanding of the consequences. The House took its decision, and that is how the Act is now set.

Turning to the running programme of criticisms from the noble Lord, Lord Bach, again I make no complaint about them. I have said previously that it has been a very strong parliamentary performance, which is absolutely right for someone in the Opposition involved in these areas. I would say, though, that in 2010 we were faced with the situation in which there were going to be considerable cuts in government expenditure. The Ministry of Justice was faced with a budget settlement that had been cut by 23% and, as I have said, it is a department that spends money only on prisons, probation, court services and legal aid.

[Lord Howarth of Newport]

Will the Minister confirm that the Government have just announced that they are going to spend somewhere between £100 million and £200 million on the modification of the Olympic stadium for the benefit of West Ham United Football Club? Why are the Government so open-handed in their funding of access to sport but so cruelly restrictive in their funding of access to justice? What scale of values does that represent? Should equality before the law not be a non-negotiable and irreducible value?

[Lord McNally]

That is the point that I was going to make. The noble Lord is extremely good at self-righteous debating points; I almost admire him for that. The fact is, though, that he has been in departments and he knows that they accept budget targets and have to look through their own expenditure.

[Lord Howarth of Newport]

My criticism was of the Government, and the Minister speaks on behalf of the Government.

[Lord McNally]

The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.

We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.

I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.

I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.

One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.

In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.

On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.

[Lord Phillips of Sudbury]

Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?

[Lord McNally]

I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.

[Baroness Whitaker]

Before the noble Lord sits down, I am not sure that he quite dealt with the point made by the noble Lord, Lord Phillips, about a culture change. Does he not agree that these regulations mark a complete reversal of our prior ideas about access to justice and equality before the law?

[Lord McNally]

No, that is why I want to invite a discussion. The term “access to justice” is bandied around very freely. I do not want to provoke him but I see the menacing figure of the noble Lord, Lord Richard, just behind the noble Baroness. He would probably agree that access to justice and access to taxpayer-funded legal aid have never been the same thing and we must not get them confused. Every Government have had to limit this provision. Oh, my God, I see that the noble Lord wishes to speak. As I say, they are not the same thing, but I want this Government and successive Governments to keep the concept of access to justice very much to the forefront of their commitments to the citizen. However, that may be done by adapting the system in a whole manner of ways: for example, in the way that advice is given. The noble Lord, Lord Beecham, was rather dismissive of remote advice, but I think that the use of new technologies will give better access to justice. However, having provoked the noble Lord, Lord Richard, I will give way to him.

[Lord Richard]

I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.

[Lord McNally]

Access to justice may also be by other forms of advice. Not all advice is legal advice.

[Lord Richard]

When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.

[Lord McNally]

Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.

[Lord Phillips of Sudbury]

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—

[Lord McNally]

Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.

[Lord Bach]

No.

[Lord McNally]

Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.

[Lord Bach]

I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.

For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.

The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—

[Lord McNally]

I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.

[Lord Bach]

No.

[Lord McNally]

Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.

[Lord Bach]

I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.

If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013

Lord McNally Excerpts

Wednesday 27th March 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft regulations laid before the House on 4 February be approved.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments.

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

My Lords, in moving that these regulations be approved, I shall respond, first, to the Motion in the name of the noble Baroness, Lady Grey-Thompson.

I am confident that the legal aid scheme under LASPO meets the access needs of disabled people. However, I understand that the introduction of the mandatory gateway continues to raise concerns in this area, and therefore I shall address them.

The Government believe that it is unnecessary for regulations to include specific reference to provision for access for disabled people in relation to the mandatory gateway. We have made a public commitment that reasonable adjustments and adaptations to ensure access to legal aid services—legal help—for vulnerable people, including disabled people, will be in place for the gateway.

The gateway is based on the existing community legal advice helpline, which already successfully uses a number of reasonable adjustments and adaptations for all clients. The gateway service will continue to operate these, and the requirement for reasonable adjustments is also specifically included in the contracts of those who will provide the service. Reasonable adjustments will include a third party being able to speak on a person’s behalf, British Sign Language via webcam, and call-back services to minimise call costs for callers.

My officials have met a number of equality organisations to discuss appropriate reasonable adjustments and further enhancements. They have also put in place a system to monitor the take-up of reasonable adjustments and adaptations, and to monitor the disability profile of gateway clients. Regarding the definition of “exempted person”, as debated and agreed during the passage of LASPO, there are three exemptions to using the gateway for accessing legal help, set out in regulation 20 of the procedure regulations. In summary, these are: a child under 18 years of age; a person who has been deprived of their liberty; or a person assessed by the gateway in the previous 12 months as qualifying for gateway work to be provided by face-to-face advice and who is seeking further advice on a linked matter. It should also be remembered that the gateway provides legal help only, not legal representation. So I do not consider that the definition is drawn too narrowly.

I am aware that others feel that a further exemption for vulnerable people would provide additional protection. I do not believe that that is necessary. The term “vulnerable people” covers a wide range of individuals with particular needs or issues. While some of those to whom the term might be applied may not be able to use the telephone or the other methods permitted to give instructions and receive advice, others will. The Government’s view is that the best way to test suitability for telephone or online advice is through an assessment of each individual’s needs and abilities, not through a blanket exemption for the extremely broad group defined as vulnerable people. The Government are confident that the gateway call operators and specialist telephone advice providers will be sufficiently experienced and trained to support vulnerable people. We plan to review the implementation and operation of the gateway in the initial three areas of law, to ensure that the exemptions, adjustments and support available properly protect those with disabilities and vulnerable people more broadly. We will publish a report of the review within two years of implementation. I hope that that meets the concerns of the noble Baroness, Lady Grey-Thompson.

I turn now to the Motion tabled by the noble and learned Baroness, Lady Scotland. At the outset I must refute the suggestion in the Motion, and in some of the comments made, that as a result of our reforms domestic violence victims will be at greater risk of injury or death. This has been suggested at various points during this debate and the passage of the Bill, and it is entirely untrue. Let me be clear: legal aid will continue to be available to help victims to obtain the full range of court protection against domestic violence in exactly the same way as now. There is no evidential requirement for legal aid for these remedies. Those who need legal aid to protect themselves will be able to get it.

The issue, therefore, that is legitimately up for discussion is whether we have made the right provisions for victims of domestic violence. In particular, it is whether we have set the right evidential criteria for someone to show that they are a victim of domestic violence so that they can qualify for legal aid for their private family law issue. I am clear that we have. We have moved a great distance in this area since the LASPO Bill first came into Parliament. We listened to the concerns of this House in particular, and the regulations before us today reflect the position that was agreed in both Houses before the Act gained Royal Assent, and in certain respects, it goes even further.

Of the forms of evidence listed in the regulations, a finding of fact is particularly important. A finding of fact made in proceedings in the UK that the applicant has been the victim of domestic violence, no matter how long ago it occurred, that gave rise to a risk of harm to the applicant, is acceptable as long as the finding was made within the 24 months before the application for legal aid was made. Our position on the evidence requirement was agreed by Parliament as reasonable during the passage of the Act and I remain of the view that it is both sensible and comprehensive. There has been a specific concern that GPs and others may charge for producing the evidence and that people may not be able to afford such charges. It is perhaps worth highlighting the fact that legal aid was never designed to deal with the costs of actually acquiring legal aid, whether this be the cost of a telephone call or evidence. I do not think it unreasonable to continue that policy here. Many of the forms of evidence, such as protective injunctions, will not attract a charge at all. We expect any charges that are applied to be modest. I cannot pretend that we have absolute control over charges—we do not. However, we have included in the regulations provisions for other health professionals to provide evidence to help mitigate against possible charges by GPs.

We have produced guidance and a template letter following discussion with the relevant professional bodies to make acquiring the evidence as simple and straightforward as possible for both applicants and those providing the evidence. We will continue to liaise with relevant bodies about the impact of our reforms to ensure that, where necessary, changes are made.

I also highlight the fact that we have now also changed the definition of domestic violence in the Act to reflect the amended across-Government definition that will come into force at the end of the month. This followed the clearly expressed view in Parliament that the definition should reflect that adopted across Government to ensure clarity of meaning. I am sure that the House welcomes this change. I would also like to reassure noble Lords that the Government will be closely monitoring the way in which the system is working from day one of the implementation and the way in which the evidence requirements are working. If concerns are raised we will take steps to address them.

I hope that that meets the concerns of the noble and learned Baroness, Lady Scotland, and others, as they have expressed unease with the Government’s approach. We are continuing to listen on these matters. I beg to move.

Motion agreed.

Prisons: Suicide

Lord McNally Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Sheldon]

To ask Her Majesty’s Government how many people have committed suicide in prisons since January 2000.

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

My Lords, the figures we hold on suicide are classified within the data on self-inflicted deaths. There were 960 self-inflicted deaths in prison custody between January 2000 and September 2012. Annual numbers have reduced from 92 per year in 2007 to 57 in 2011.

[Lord Sheldon]

My Lords, by last week there had been 982 suicides since 2000, including 15 children under the age of 18. Staff in prisons try to reduce those deaths but suicides continue.

[Lord McNally]

My Lords, inevitably it is true that suicides continue. But there has also been a concerted effort by the prison authorities and those with responsibility for the youth estate to try to avoid as far as possible these dreadful circumstances—dreadful for the prison staff who have to deal with them and dreadful for the families who have lost loved ones. The noble Lord makes the point that suicides continue. I would say that that is against a background of great efforts by the authorities to try to continue the welcome reduction of recent years.

[Baroness Linklater of Butterstone]

My Lords, any suicide in custody is terrible and a cause for real concern, but when children commit suicide it is an absolute tragedy. Three children have died in the past 18 months or so, as recently reported by the Prisons and Probation Ombudsman in Wetherby, Hindley and Cookham Wood YOIs. Can my noble friend the Minister please tell the House what action the Government are now going to take to ensure that these exceptionally vulnerable children—as these were—are not held in young offender institutions but in facilities that are better suited to meet their very particular and challenging needs?

[Lord McNally]

My Lords, my noble friend is right. There have been three recent deaths—the first in youth custody for more than five years, so it is important to keep these numbers in perspective. The Youth Justice Board—YJB—which is responsible for the placement of young people in custody, is working closely with the Department of Health in the development of the comprehensive health assessment tool to screen and assess the needs of young people aged under 18 on reception. The Department of Health has developed a youth justice health and well-being needs assessment toolkit, which is now available to help with the planning and commissioning of health services for young people across the justice system. I should also add that the three recent deaths have been investigated by the Prisons and Probation Ombudsman.

[Baroness Finlay of Llandaff]

Since the instance of two or more mental disorders among the prison population is estimated to be 15 times that of the rest of the population and up to 35-fold higher in female prisoners, despite the assessment that the Minister referred to and despite the fall in suicides, there remains a major treatment problem for prisoners with mental health disorders, particularly when they move around and do not have stable placements. How is this going to be addressed by the Ministry of Justice and how will the changes to the NHS affect the provision of mental health services in prisons?

--- Later in debate ---

[Lord McNally]

The noble Baroness is correct. One of the abiding problems of our Prison Service is the need of so many prisoners in the criminal justice system for mental health support. We are talking with the Department of Health to make sure that we can assess prisoners and that those who are in need of mental health support are given it. Since 2007 all establishments operate an individually focused care planning system for prisoners identified as being at risk, the key benefits of which include an initial assessment and faster first response, the provision of flexible individual accountable care, better sharing of information and a multidisciplinary approach. I do not underestimate the fact—

[A noble Lord]

Too long.

[Lord McNally]

I know it is too long but it is worth getting on the record that the problems of mental health within the prison population remain and we need a more holistic approach to solving them.

[Lord Elton]

My Lords, my noble friend referred to prisoners identified as being at risk of suicide. Can he tell us how many of those there are currently, how many are identified as having mental health problems of any sort, and how many staff there are who are qualified to deal with their mental health illnesses while they are in prison?

[Lord McNally]

On the latter issue I will have to write to the noble Lord. On any one day in the Prison Service it is estimated that there are about 1,500 prisoners who are under care and supervision out of concern for the danger of self-harm or worse. I will have to write to the noble Lord about the actual number with mental health issues.

[Lord Roberts of Llandudno]

My Lords—

[Lord Harris of Haringey]

It must be this side’s turn eventually. I declare an interest as chair of the Independent Advisory Panel on Deaths in Custody. Given the importance of properly investigating the deaths, particularly of young people but of anyone who dies unexpectedly in prison, is the Minister satisfied with the level of resources available to the Prisons and Probation Ombudsman to carry out their function and, secondly, does he not agree that it is time that the Prisons and Probation Ombudsman was made statutorily independent of the Ministry of Justice and the Prison Service?

[Lord McNally]

On that latter point I will have to take advice. I pay tribute to the noble Lord for his appointment to the independent advisory panel. It was set up in 2008 and its shared purpose is to bring about a reduction in the number and rate of deaths in all forms of state custody and to share the lessons that can be learnt from these deaths. The ministerial board incorporates senior decision-makers, experts and practitioners in the field. This extended cross-section approach to deaths in custody allows for better learning and sharing of lessons across the sector.

Prisons: New Prisons

Lord McNally Excerpts

Wednesday 20th March 2013 Lords Chamber

[The Lord Bishop of Liverpool]

To ask Her Majesty’s Government what plans they have to ensure that all new prisons are environmentally sustainable.

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

My Lords, the Building Research Establishment environmental assessment method—BREEAM—sets the standard for best practice in sustainable building design, construction and operation, using recognised measures of performance set against established benchmarks. All new prisons are required to be BREEAM-assessed to a standard of excellence.

[The Lord Bishop of Liverpool]

My Lords, I thank the Minister for that very encouraging reply. Does he recognise that sustainable prisons, with productive gardens, workshops and even small farms, can help with rehabilitation and reduce reoffending, especially among the very high proportion of prisoners with mental illness?

[Lord McNally]

My Lords, the right reverend Prelate is correct, and that is why new prisons are designed to be able to facilitate opportunities for work, education, training and rehabilitation. That is the benefit of a new-build policy.

[Lord Beecham]

My Lords, will the Minister ensure that in addition to being environmentally sustainable, new prisons are located in places that are not too far removed from the places whence the prisoners have come and where they might find jobs after their release?

[Lord McNally]

My Lords, as part of the rehabilitation revolution we are looking at a release programme for prisoners whereby they can be located in a prison that gives them a chance for suitable training and, as I think I have mentioned before, with an emphasis on “through the gate” support after they leave prison, if possible in locations close to where they are going to live thereafter.

[Viscount Bridgeman]

My Lords, can the Minister assure the House that the new building programme will eliminate or reduce the problem of churning, which causes such distress to prisoners’ families?

[Lord McNally]

If we can get a secure, stable estate and a prison population that is not overcrowded, certainly. A lot of attention is given by prison management to locating prisoners close to families. As my noble friend will appreciate, there are other matters that have to be taken into consideration in ensuring that each prison is stable and well managed.

[Lord Patel of Bradford]

My Lords, with an ever increasing prison population—there are more than 84,500 men, women and young people in our estate—and with 46% of adult prisoners having 15 previous convictions or cautions, it is clear that prison is not working. Rather than building new prisons, what action are the Government taking to divert people from the prison estate in the first place?

[Lord McNally]

Indeed. I have drawn attention before to the very high number of people in prison. While we are building new prisons, we are also closing old prisons. Our older prisons are ill equipped for rehabilitation. I hope that the proposals that we will be bringing forward on the rehabilitation and management of offenders will address some of those issues. I could not agree more that there are better ways of spending taxpayers’ money than on circulating repeat offenders through our prison system.

[Baroness Trumpington]

My Lords, may I stretch the words of the Question a little further to include farming? Farming was formerly part of a prisoner’s range of choices, particularly with a view to future jobs and a lifestyle. Apart from that, the meat that they provided from pigs and cows was fed to the prisoners and was perfectly delicious, as I know from Pentonville prison.

--- Later in debate ---

[Lord McNally]

I think it was possible to have prison farms in the past. My noble friend is right about both the sustainability of such regimes and the benefit to prisoners. I am not sure that present circumstances would allow that, but I recently visited a prison in the north-west that had opened up a section of the land to develop an under-glass market garden. That was being very well used by the prisoners, who had gained great benefit both from the training that they received there and the personal satisfaction that such work gave.

[Lord Elton]

My Lords, my noble friend acknowledged the value of rehabilitation. Will he acknowledge the even greater value of people being prevented from getting into crime and say what plans there are to start skewing the budget away from punishment and towards prevention?

[Lord McNally]

The Government’s whole policy is to try to divert people from crime. We are looking to develop many more mentoring schemes to enable people who are vulnerable to be helped with their addictions and problems in a way that will divert them from crime.

[The Earl of Listowel]

My Lords, can I ask the Minister from the Cross Benches whether he is aware of the excellent example set in this regard by Wetherby young offender institution, where the young men have dug out a pond, tend their animals and can fish? It seems an excellent achievement by that institution.

[Lord McNally]

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

[Lord Marks of Henley-on-Thames]

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

[Lord McNally]

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

Transfer of Tribunal Functions Order 2013

Lord McNally Excerpts

Tuesday 12th March 2013 Grand Committee

Moved By

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Transfer of Tribunal Functions Order 2013

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments

Motion agreed.