Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013
Lord McNally Excerpts(13 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013.
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Committee is considering the two draft orders: the Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act Order 2013, which I will refer to as the amendments order, and the Transfer of Tribunal Functions Order 2013, which I will refer to as the transfer order.
The orders before us today are part of a series that facilitate the transfer of the functions of a range of tribunals into the First-tier and Upper Tribunals. These orders will enable us to establish a new chamber in the First-tier Tribunal, which will be known as the Property Chamber and will transfer the functions of a range of tribunals into the unified tribunal structure. The Property Chamber will deal with land registration, residential and leasehold property, rent and housing matters and in relation to park—that is, mobile—homes. Subject to parliamentary approval, it will be launched on 1 July 2013.
The purpose of the draft amendments order is to add the rent assessment committees and the agricultural land tribunals to the relevant parts of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007. That schedule lists the tribunals that can be transferred into the unified tribunal structure; in this instance, into the First-tier Tribunal and the Upper Tribunal. It is the addition of these tribunals into the appropriate parts of the schedule that activates the powers of the Lord Chancellor to transfer their functions into the tribunals.
Transferring the functions is the purpose of the second draft order, the transfer order. It will transfer to the Property Chamber of the First-tier Tribunal the functions of residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—which are composed from the members of rent assessment panels—in England; the agricultural land tribunal in England; and the Adjudicator to Her Majesty’s Land Registry in England and Wales.
It might be worth me going into some detail about why the Government are taking this action and why it is necessary. I think it would be helpful to give some background to tribunals in general and the Property Chamber in particular. Over the past few decades, a number of tribunals have been created to bring together specialist knowledge and expertise to resolve disputes, but they were first recognised as part of the justice system of the United Kingdom in the Franks report of 1957. From then until the turn of this century, a network of tribunals evolved, each with different rules of procedure, with varying powers and different sponsoring government departments.
It was apparent that this haphazard approach to creating tribunals was neither efficient nor economical. In 2004, the Government, through the Lord Chancellor, invited Sir Andrew Leggatt, a former Lord Justice of Appeal,
“to review the delivery of justice through Tribunals”
in England and Wales. The Leggatt report was the result of the review. The report recommended extensive reforms and set out a programme for developing a unified tribunals system. Following the report, the Tribunals, Courts and Enforcement Act 2007 was passed to implement its recommendations. This Act established a two-tier tribunal system, independent from decision-making government bodies, with a First-tier Tribunal and an Upper Tribunal. The Act also provided a number of powers to effect the transfer of existing tribunals or direct new appeal rights into this system.
A system of chambers was established within the two-tier structure, which enabled specialist tribunals with related jurisdictions to be brought together. This arrangement brings a number of benefits by providing cohesion and consistency within the system and allows judges and panel members to be deployed across jurisdictions as appropriate. From November 2008, the Upper Tribunal and the First-tier Tribunal took over the jurisdictions of a number of existing tribunals. Since then, further tribunals have been brought into the new system.
We are now at the stage where a unified tribunals system is almost completed. There are now are six chambers in the First-tier Tribunal and four chambers in the Upper Tribunal. In 2011-12, almost 740,000 applications or claims were received by tribunals. In the same year, more than 730,000 cases were disposed of. The matters dealt with by tribunals are wide-ranging, and cases range from those that can be determined on paper to those that are complex and involved and take a number of days to hear the issues.
When the Property Chamber is launched in July it will be the seventh chamber in the First–tier Tribunal and will bring together jurisdictions concerned with property and lands. These are residential property tribunals, leasehold valuation tribunals, rent tribunals and rent assessment committees—all which are composed from the members of rent assessment panels—the agricultural land tribunals and the Adjudicator to HM Land Registry.
What will happen to these three tribunals when the Property Chamber is launched? In short, they will cease to have any functions in England, although they will continue as before in Wales. Their jurisdictions will be transferred into the new tribunal. All the judicial office holders and panel members in post at the point of the transfer will become a transferred-in judge or member of the new tribunal. These jurisdictions deal with a wide and diverse range of issues, some of which are technical and complex. They include cases concerning residential property, including rent, park homes and leasehold disputes, issues over agricultural land and disputes about registered land in England and Wales, most of which will be referred to it by the Land Registry.
Why is the Property Chamber being created? Currently, the three jurisdictions that will transfer into the chamber operate independently of each other. They have their own sets of procedural rules, different terms and conditions for office holders and administrative staff, various locations and diverse practices. The benefits of creating the chamber are clear: it will be the centre of expertise for matters relating to land, property and housing; it will bring greater consistency in decision-making and effective case management, with one set of rules for all the jurisdictions; there will be administrative efficiency leading to a reduction in costs; it will enable good practice to be spread across the jurisdictions, also leading to greater efficiency; it will allow more flexible and efficient judicial deployment; and it will deliver administrative efficiency, leading to a reduction in costs.
There is no doubt that the creation of the Property Chamber in the First-tier Tribunal and the transfer of the jurisdictions into the chamber will mark a significant milestone in the achievement of the long-held vision of a unified Tribunals Service. It will signify a further step in delivering the chamber structure within the First-tier Tribunal, as envisaged by the Tribunals, Courts and Enforcement Act 2007. I therefore commend these draft orders to the Committee, and I beg to move.
Baroness Gardner of Parkes
My Lords, I wish to speak on this because I feel that the statements that are being put forward are not necessarily as good as they sound. My interest in property is in the register, but I state again that I have a personal interest. However, my interest is much wider than that; it is also about other people. I have asked the noble Lord, Lord McNally, Questions on the Leasehold Valuation Tribunal in particular. He replied by letter and it was very interesting. I was concerned because at the moment the applicant cannot be asked to pay more than £500. Under the new proposals, the amount will vary from £65 to considerably more—over £500—but no one quite knows where they will come in that scale. If there is a hearing, you might be asked to pay another £190 for it. That is the minutiae of the answer, which I think is worth putting on record. Over the years, the amount has never varied. Although when we established the Leasehold Valuation Tribunal in 1996, we had hoped that the amount would never vary, we cannot expect prices to remain static for ever. That is an incidental point.
I am concerned about the whole structure of the Leasehold Valuation Tribunal going into the Property Chamber. I was particularly concerned when I read the Explanatory Memorandum supplied with the order. At paragraph 3.1 it refers to Paragraph 22 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 which,
“alters the type of power used for prescribing one particular fee … and inserts a negative resolution procedure”.
That is considerably weaker than the affirmative procedure but, nevertheless, I am just pointing out that that is what is proposed.
I am more concerned by paragraph 3.3 of the document, which states:
“The Upper Tribunal already hears unlimited onward appeals from residential property tribunals”.
That was always envisaged. It was always envisaged that the first stage would be within the means of ordinary people. There is a separate argument here which I shall bring up on the Enterprise and Regulatory Reform Bill, on which I propose to table amendments on a number of issues. I am sorry to say that on some issues I have been told that the difficulty is to get the Ministry of Justice to co-operate sufficiently to get important changes through on housing issues. That is not good enough. I draw that to the Minister’s attention. Those amendments will be coming up at Third Reading on 20 March, and I hope that the Ministry of Justice will have looked at things a bit thoroughly by that time and got things going because it is important to realise that this is a very dramatic change.
The suggestion in the Explanatory Notes that they will all be expert people is quite frightening because a separate matter in the housing issue that we have been talking about is that the management, who are not supposed to be putting up big legal people in round one, which was for the ordinary person to bring their case, are now bringing in very expensive legal people and, what is worse, the cost of that, win or lose, is charged back to the people who brought the application for £500 because it is claimed to be a legitimate management expense to provide the most expensive lawyers. Going back to 1996, when this Act went through, it was always acknowledged that when it came to the upper-level tribunal major experts and huge fees would be involved and everyone realised that at that point the large property owner or the person or company who had multimillions of pounds would be at a huge advantage because they could afford to employ such people, but the lower level was always meant to help the ordinary person and give them a fair go. I am concerned about whether that is going to continue. I am being quite tough about this because it is not often that I get the opportunity to have this word in the ear of the people who come from the Ministry of Justice, whereas poor old housing suffers from me all the time.
Then we get to the residential property tribunals and the three that will be changed over. I have no views on the agricultural side because I know nothing about that and I would not attempt to mention it. However, the leasehold valuations, the rent tribunals and the rent assessment committees are all property issues. Another major issue with property, which again is a justice situation, is why do we not have one decent housing Act? Is it not time to consolidate housing? When I tabled a Question on this issue, I was told by the former Lord Chancellor, the noble and learned Lord, Lord Mackay, exactly what wording to put in so that the justice department would answer it. Instead, it was answered by the communities department again. The Ministry of Justice did not answer it at all. I thought that was rather a tragedy because the noble and learned Lord had told me that with that wording it could not be replied to by anyone other than the Ministry of Justice. There is something wrong with the system if things are not getting through. It could be that we are not getting any response because the justice department is not even aware of what we are asking.
Lord Beecham
My Lords, I am sure that the Minister would join me in congratulating the noble Baroness on using her professional expertise to fill the gap in the Tribunals Service for so long, consistent with her other cavity filling over the years. She raised an interesting topic—that of costs. Given that we now have a range of tribunals being brought together, could the Minister indicate whether there will be a uniform charge or whether it will be differentiated between the different categories with which the new property tribunal would deal? As she implies, that could potentially be quite a significant issue. It also raises in my mind a question about legal aid, which of course is now not available for First-tier Tribunals. Could the Minister give an assurance that nothing in these orders will diminish access to legal aid or advice over and above that which, as we know, would affect other categories of case, which we have discussed at some length and may do so again in some not so distant future, around aspects of welfare law?
In that context, I ask about one passage in the Explanatory Memorandum to which the noble Baroness referred, at paragraph 3.3.5. It says:
“Section 11 of the 2007 Act imposes a requirement of permission to appeal from the First-tier Tribunal to the Upper Tribunal”.
Of course at the time that that Act was passed legal aid would have been available. I understand that it will no longer be available for the purpose of obtaining that permission. I regret that position, which we have already debated at some length in the Chamber. The paragraph goes on:
“Amendments provide for this requirement to apply to the entire breadth of the onward appeal, even where the right of appeal from the First-tier Tribunal decision goes wider than a point of law”.
I am not sure what is implied by that paragraph, either in relation to its substance or to the availability of legal advice and assistance for those who might be otherwise financially entitled to it.
Another question that I have is whether valuation tribunals—that is, ordinary valuation tribunals—as opposed to leasehold valuation tribunals are to be brought within the scope of the property tribunal. For example, if by some remarkable parliamentary arithmetic the Minister’s party’s policy and my party’s policy on a mansion tax were to be carried tonight presumably there would be some sort of valuation system required. Even without that there may at some point be a valuation of domestic properties in particular.
There is a system for dealing with commercial properties and business rates with a cumbersome appeal mechanism. Is it envisaged that the property tribunal will take those issues into account? I hope that it might. The current procedure, particularly on the commercial property side, is leading to inordinate delays going back nearly a decade for determination. If it were to be brought within the scope of this new tribunal, I hope that it is a matter that could be dealt with, and a better service could be offered to the potential taxpayer and those organisations, notably local authorities, that clearly will have an increased interest in the local business rates yield of those properties. Perhaps the Minister could indicate, if not now then subsequently, whether this is to be brought within the scope of the new tribunal, either now, or possibly in the future.
With that said we do not object in principle to the proposal. It makes sense to bring things together. I hope that, subject to the observations made by me and the noble Baroness, we can approve these orders and look to a more efficient system applying, drawing as it will on a range of expertise. It is important that that range is reflected adequately in the appointments made to the new tribunal; and that should assist materially in the delivery of a better service to those who seek its decisions.
Lord McNally
My Lords, I thank the noble Baroness, Lady Gardner, and the noble Lord, Lord Beecham, for their interventions. As I mentioned in my opening remarks these orders almost complete the work set out by the Leggatt report. In spite of the points raised by the noble Baroness most people agree that the creation of a Property Chamber is a positive step that will bring benefits to users and consistency in this area of the law. Nevertheless, the questions raised are pertinent. As the noble Baroness, Lady Gardner, has acknowledged, I have a wonderful team behind me, which I hope has been taking note of her comments. She is probably right that at some stage there will be a strong case for a consolidated housing Act. When that will find its way into the parliamentary timetable, I do not know. However, the points that she raised illustrate the fact that we are talking about an area that cuts across a number of departments and pieces of legislation. Nevertheless, I hope these measures illustrate that we have made progress in terms of consistency and efficiency.
Lord Beecham
On that point, the Explanatory Memorandum talks about the right of appeal going wider than a point of law. I appreciate that it may apply to a point of law, but what if the matter goes wider than that? On the face of it, the right of appeal does not appear to be available. I am not asking for a reply now.
Lord McNally
I had better not guess. I would assume that it is not available but I will write to clarify. On the specific issue of legal aid, we do not consider that changes to legal aid will increase inequality in this area. One of the fundamental principles of the legal aid reform has been to discourage unnecessary and adversarial litigation at public expense. Tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation or access to legal aid advice. While we recognise that clients find advice in preparation for a case useful, we do not consider that this is a matter for the group of clients who are generally likely to be vulnerable.
I appreciate the interventions of the two noble Lords who I know have long experience in this area. I know that my colleagues will have valued their interventions, and we will consider carefully the points that they have made. I return to my concluding remarks when moving and speaking to the orders; in putting these final pieces of the Leggatt reforms into place, we have a better and more efficient Tribunals Service that will be to the benefit of citizens.
Lord Beecham
Before the Minister concludes, while it may not be for this evening, I specifically mentioned the point about valuation tribunals. I leave aside the mansion tax element for the moment.
Lord McNally
I apologise. Transferring the Valuation Tribunal for England and the Valuation Tribunal Service into Her Majesty’s Courts and Tribunals Service remains part of our administrative justice and tribunals works programme. There is considerable support from the Senior President of Tribunals and the wider judiciary for this transfer. MoJ officials will continue to negotiate with colleagues in DCLG and the Cabinet Office to identify how best to transfer VTE in the most cost-effective way. The short answer to the noble Lord is: that is work in progress.
Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013
Lord McNally Excerpts(13 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013
Relevant documents: 16th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the order implements the revised Code of Practice on Adult Conditional Cautions, which provides the framework in which conditional cautions operate and will come into force the day after the order comes into force.
Conditional cautioning for adults currently operates under a code of practice approved by Parliament in 2009. Amendments have been made to the Criminal Justice Act 2003, which requires the code to be updated by this order. Part 3 of the Criminal Justice Act 2003 as amended allows an authorised person, usually a police officer, or a relevant prosecutor, usually the Crown Prosecution Service, to offer a conditional caution to an adult offender aged 18 or over. Before the conditional caution can be offered to an offender, he or she must admit to committing the offence and agree to accept the conditional caution and the conditions attached. The police or prosecutor must be satisfied that there is sufficient evidence to prosecute and that it is in the public interest to offer a conditional caution. If, once the conditional caution has been administered, the offender fails to comply with the conditions, he or she may be prosecuted for the original offence. Conditional cautions cannot be imposed on an offender, and the code of practice makes this clear. In every case, the offender must agree to accept the conditional caution and the conditions that are proposed. He or she may, for any reason, choose to decline the offer of a conditional caution and opt instead to be prosecuted.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made two amendments to the conditional caution framework as set out in the Criminal Justice Act 2003. First, it enabled the police to offer a conditional caution and to set and vary conditions by removing the requirement for a prosecutor to authorise such decisions. Secondly, the 2012 Act introduced two new conditions that can be attached to a conditional caution and offered to relevant foreign offenders—that is, those offenders who do not have permission to be in the UK. These new conditions have the objectives of bringing about the departure of foreign offenders from the United Kingdom and ensuring that they do not return to the UK for a period of time.
Alongside these amendments to the code of practice arising from the legislative changes, we took the opportunity to look at the existing guidance within the code and made further amendments to clarify and strengthen it. We have, for example, strengthened what is said on selecting appropriate conditions and on offering a conditional caution to offenders with mental health issues and making sure that they understand the implications of accepting it.
The Criminal Justice Act 2003 sets out the procedure for revising the code of practice. First, the Justice Secretary must agree a draft for publication with the Attorney-General. The Justice Secretary is then required to publish that draft code of practice and consider any representations made by respondents. A public consultation took place on the draft code from 4 October 2012 to 1 November 2012. The consultation was sent to criminal justice practitioners, such as police and prosecutors, as well as to stakeholder groups, such as the Magistrates’ Association and the Law Society, and third-sector groups, such as Mencap. In total, 37 responses were received—on the whole positive responses which welcomed the guidance—which we considered, and some further revisions to the draft code were then made. The revised code has been approved by the Attorney-General and the Justice Secretary and a copy of it and the Government’s response to the consultation were placed in the Library of this House as well as on the Ministry of Justice website. The draft order and the code of practice were laid before Parliament in January this year.
In addition to the code of practice, the Director of Public Prosecutions issues operational guidance on the approach for police and prosecutors to take when considering whether a conditional caution may be an appropriate response to an individual offence. The DPP is revising his guidance following the legislative changes and the changes made to this code of practice. This order brings into force the code of practice which will provide the framework in which police and prosecutors make decisions on whether a conditional caution is an appropriate response to a criminal offence. It will allow conditional cautions to be used to provide the opportunity for offenders to make swift reparation to victims and communities and for offenders to be directed into rehabilitative services to tackle the causes of their offending behaviour. Conditional cautions will also allow the removal from the UK at the earliest opportunity of those foreign offenders with no permission to be here who have committed a crime. We believe that this is a useful tool and are working with the UK Border Agency to ensure that the conditions are implemented and enforced robustly to ensure that public protection is maintained.
If the order implementing the revised code of practice is approved by Parliament, it will be implemented across England and Wales from 8 April 2013 alongside the commencement of the amendments to the Criminal Justice Act 2003 made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. I commend the draft order to the Committee, and I beg to move.
Lord Beecham
My Lords, I will. I was making the point that this case exemplified the arguments that are being made about the Government’s defective consultation procedure, but that is a preliminary point and does not go to the substance of the matter, and I do not expect the Minister to accept any responsibility for what seems a flawed process. I suspect that it is not a matter to which he would have given any material consideration.
On the other hand, the Minister will be aware that there is considerable concern about the number of cautions now being offered in lieu of possible prosecution and a feeling that this is to some extent being used by some police forces as a device to, shall we say, depress the level of recorded crime. There is at least that concern. Whether it is justified is another matter, and I would not for a moment suggest that all police forces are succumbing to that temptation, but there is a feeling that there is an issue, and one has to bear that in mind as we look at extending the system in the way that these proposals do. A cynic might indeed wonder whether this might be another way of reducing the criminal legal aid bill, about which the Minister and his colleagues are so exercised, but heaven forfend that I should be susceptible to such a cynical standpoint.
However, there are a number of points to be raised about these proposals. In terms of conditional cautions, they shift the responsibility entirely on to police officers, at least if they chose to exercise the power given to them. Will the Minister indicate what follow up there will be in terms of consultation about the way the new system is working? Now that we have elected police commissioners—which is not something that I or my party have ever favoured—presumably they will be involved in any consultations, as chief constables would be. Will the Minister indicate whether it is intended to set up a process to monitor the way the new powers are being used and how frequently those consultations will be carried out?
There is also a question about the guidance which the Director of Public Prosecutions is to issue. Once again, we have secondary legislation without the accompanying guidance on how matters are to be used. That is a most unfortunate defect in the procedure. The potential problem is that this new system will be carried out in different ways in different areas. Surely there ought to be a degree of consistency, which, no doubt, the guidance would seek to promote, between what happens in different police authority areas. Again, the question arises of what steps the Government will take to ensure as far as possible that there is a degree of consistency.
On foreign defendants—of course, they will not be defendants because there will not be a prosecution, so let us call them foreign offenders for the purposes of the debate—I invite the Minister to respond to the possible doubt that this may be a convenient way of dealing with foreign offenders without the expense of a trial, but possibly at the expense of visible justice so far as victims are concerned. Will the guidance indicate the level of offence that it would not be deemed appropriate to be the subject of a conditional caution, with the condition of deportation attached to it? Deportation may well be desirable, but it may also be desirable for an offence to be dealt with through the courts in the normal way.
We do not oppose the principle of the order. It is certainly worth pursuing the option of conditional cautions but, as the Minister recognised, we have some reservations about how the system might work in practice. It is new, and I hope that we can have an assurance that there will be a proper review of progress, perhaps in a year or two, to see how the system is working in practice and, in particular—I repeat—whether there is consistency in practice across the country which one would think would be desirable, if only to retain public confidence in the new process. I reiterate the request that in future guidance that will be crucial to the operation should be available for consideration before the secondary legislation goes through your Lordships’ House and the other place.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Beecham. As usual, he is constructive in his questioning and I will try to be equally constructive in my responses. I am informed by my noble friend Lord Wallace that there was indeed a good and robust debate about consultation in this Room yesterday. Where I cannot follow the noble Lord, Lord Beecham, is in his description of consultation in this case as being either defective or flawed. It was short but effective. We were working against a pretty tight timetable to deliver the LASPO reforms in place and on time.
I take the point that there was not perfect synergy between the coming into office of the new police commissioners and our consultation, but it was interesting that more than half the responses to the consultation came from police forces or ACPO. As I indicated, the overwhelming response to the consultation was favourable to what we are trying to do. The noble Lord, Lord Beecham, was right to raise the question of consistency in the application of these proposals. That is part of a broader approach that we are undertaking at the MoJ to try to make sure that statistics about policing and courts are more widely known so that we can see the effectiveness of any such measures and any variety in their implementation.
We are supporting the Association of Chief Police Officers in its work to develop local scrutiny arrangements for out-of-court disposals. These will consist of a retrospective look by a range of criminal justice professionals at how an area uses these disposals, and it will look at individual cases to see whether they raise any training needs. We are working with the senior judiciary to establish how we harness the unique knowledge and experience of magistrates in these arrangements.
The noble Lord, Lord Beecham, also asked whether there was a kind of inflation in the use of out-of-court disposals. It is true that there was a significant increase after 2007, but that was not at the expense of convictions, the figures for which have remained broadly stable. Part of the reason for the increase was targets imposed by the previous Government that created an incentive for criminal justice agencies to criminalise low-level offending by administering cautions where otherwise they may have taken no further action. After those targets were replaced, the number of out-of-court disposals since 2007 has declined by about 43%.
The noble Lord asked for which offences conditions for foreign offenders will be available. The foreign offender conditions will be available for the same offences as the other types of conditions. However, it is right to make these conditions available for more serious offenders—for example, where the likely sentence, if prosecuted, would be a period of imprisonment. We believe that for foreign offenders who have no right to remain in the UK and admit to committing certain offences, the public interest is better served by administering a caution and promptly removing the offenders from the UK, rather than prosecuting and potentially imprisoning them at the taxpayer’s expense, only to remove them from the country once the sentence is completed. Where the public interest requires it, serious offences committed by foreign nationals will, of course, continue to be prosecuted.
The noble Lord raised the question of the DPP guidance. This will set out the circumstances when the police can offer a conditional caution and when they should refer the matter to the CPS. The police will be able to offer a conditional caution for a summary-only or triable-either-way offence but the decision in an indictable-only offence should be authorised by a prosecutor. In a case of whatever seriousness, the police can seek advice from the CPS on the appropriate disposal decision. This brings conditional cautions into line with the current situation on simple cautions.
On the question of the timing of the DPP guidance, I agree with the noble Lord. It is unsatisfactory. If I was in his place, I would grumble. Parliament is right when it says that it has not been given the whole picture on these things. I am asked to assure him that one of the advantages of delaying is that we will be able to take this debate into account as we put the guidance forward. I can already see how convinced the noble Lord, Lord Beecham, is by that bit of sophistry; I sense waves of a feeling of treachery from behind me. As a parliamentary practitioner, I think that it is far better when Parliament gets the whole picture when making a decision. I also appreciate the pressure that we are putting our officials under.
Returning to the matter of foreign offenders, we will, of course, also take into account the views of victims. However, I think there is a general feeling that a sensible way of dealing with these offenders will be to get them out of the country and not put the taxpayer through the cost of prosecuting and possibly incarcerating them. We will keep these matters under review. The aim is to provide a consistent system, based on a clear framework of guidance, while giving flexibility to the police to make common-sense decisions. I hope that we will have an opportunity to gather together the results of the ACPO research, to which I referred, and perhaps at some stage publish it to promote further discussion. As the consultations indicated, there has been a broadly favourable approach to it. The points about ensuring consistency and proportionality, raised by the noble Lord, Lord Beecham, are well taken, but I still have no hesitation in recommending the order to the Committee.
Lord Beecham
Will the Minister confirm that the review will provide information not only on the number of orders made but on the number in respect of which breaches have occurred? In fact, it might be helpful to have a picture of what is happening in terms of breaches of the existing conditional order system, not, obviously, immediately but as part of that review process. Will he agree to ensure that that takes place?
Lord McNally
Yes, I readily agree to that. As I said before, one of the things that are very central to MoJ policy is the gathering of relevant statistics. The noble Lord talked about breaches. That is a very relevant statistic in terms of seeing how effective this measure is. We want to make use of the ACPO research and the information that the MoJ is gathering to analyse the measure’s effectiveness. As I say, I readily agree to that.
Justice: Legal Advice
Lord McNally Excerpts(13 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, these matters were assessed as part of the impact assessments, which were published alongside the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Lord Bach
My Lords, I thank the Minister for his reply as far as it goes but I do not think it is very full on detail. It is now only 21 days until civil legal aid effectively disappears, affecting access to justice for perhaps hundreds of thousands of people every year. What do Her Majesty’s Government think will happen to the disabled person, for example, who wants to appeal his or her Atos decision, or the person who needs housing advice but cannot get it because the local Shelter housing advice centre has been forced to close, as today’s newspapers report? What are the Government’s contingency plans when unadvised and unrepresented clients flood courts and tribunals? No one can say the Government have not been warned, all the way from the very top of the legal system to small charities that are at breaking point. What will the Government do when it all goes wrong?
Lord McNally
My Lords, we are working on some of these issues. We are working with the judiciary to improve guidelines for people representing themselves in court. We are developing a new online information service to help people find out if they are eligible for legal aid or signpost them to other services. We are giving £65 million of funding to help not-for-profit social welfare advice providers to adapt and transition over the next two years. We are also encouraging innovations in the legal services market, such as the provision of lower-cost advice services to help people in resolving their problems.
Lord Naseby
My Lords, how can anybody make a useful assessment in such a short time as there is from now to the changes? Should we not recognise that great trouble has been taken over these proposed changes? In a very tight financial situation, has not the time come to see what happens and then, if necessary, make changes one way or the other?
Lord McNally
I thank my noble friend for that question. It is true that the noble Lord, Lord Bach, has made something of a cottage industry of—
Lord McNally
He continually talks about what is going to happen. As my noble friend has just said, let us see what happens. As I indicated, we are making a number of changes. Of course I understand that there are difficulties for organisations such as Shelter and the CAB. We have tried to give assistance in those adjustments. It is extremely difficult to give precise responses to predictions of catastrophes that may or may not happen. I can say to my noble friend that we will keep these matters under review. As noble Lords on those Benches will remember, on their instructions we inserted into LASPO a clause that allows review of the impact of the changes that we have made.
Baroness Butler-Sloss
My Lords, I will not ask the Minister about legal aid, but is he aware of the increased importance of law centres and citizens advice bureaux advising unrepresented litigants, of which there will be an enormously increased number come April? What are the Government going to do to help them advise unrepresented litigants?
Lord McNally
Yes, my Lords, I am aware of that, but one of the points I have made continually through this is that the CAB and the law centres will have to adjust to a situation where the amount they have at their disposal is a lot less, just as my department and local authorities have had to do. That is a fact of life. As I have said on a number of occasions, we are a lot poorer than we thought we were four years ago. Citizens Advice has been extremely successful in lobbying and, as I have indicated, we have made more funds available. For example, my right honourable friend the Lord Chancellor has announced today that we will be giving further aid to the CAB at the Royal Courts of Justice to help with the particular work it is doing in this area.
Baroness Hollis of Heigham
My Lords, in three weeks’ time the bedroom tax will kick in—and I use the phrase “kick in” advisedly. Some 660,000 families, two-thirds of them including someone with a disability, will lose between £14 and £25 a week from their benefit. Given that, despite the noble Lord’s answers, CABs are losing—locally, certainly—some 40% of their funding because the Lord Chancellor’s money has dried up, where does he expect those 660,000 families to go for advice?
Lord McNally
The Opposition continue to preach gloom and doom about this. They will be entitled to bring to our notice how these impacts take place, but we have put a number of measures in place to try to deal with this new situation. We have put on a new online information service, we have given Citizens Advice and other advice centres transitional money and will continue to do so, and we are looking for innovations in legal services from other parts of the legal profession. We will see what happens.
European Convention on Human Rights
Lord McNally Excerpts(13 years, 4 months ago)
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Lord Clinton-Davis
My Lords, as the only male to have the temerity to be on the list today, I beg leave to ask the Question standing in my name on the Order Paper.
The Minister of State, Ministry of Justice (Lord McNally)
I am not going there, my Lords.
The Answer to the Question is no.
Lord Clinton-Davis
Did not the Home Secretary argue recently that the next Tory election manifesto should include a pledge to withdraw from the European Convention on Human Rights, thus reflecting the views of many Conservative MPs? Was that not described by the former Justice Secretary as “laughable and childlike”? Does not this division on a serious issue of policy show evidence of a hopeless split in the Conservative-led Government today?
Lord McNally
My Lords, I speak at this Dispatch Box for the coalition Government and the coalition Government’s policy on the European Convention on Human Rights is very clear. The noble Lord asked a specific question, “Is it our policy to withdraw?”, and I gave him a specific Answer: “The Answer is no”.
Lord Pannick
My Lords, do the Government recognise the link between this Question and the previous three in that the European Court of Human Rights has played a major role over the past 40 or so years in combating arbitrary discrimination on grounds of sex and race and other invidious grounds?
Lord McNally
My Lords, I find that a very helpful contribution. When the question, “Are you in favour of the European Convention on Human Rights?” is asked, certain people will see the word Europe and their eyes will start spinning round. As the noble Lord has pointed out, however, if you ask people, “Do you want built into law protection against the power of the state?”, in the way that he has just illustrated, they will invariably say, “Yes, please”.
Lord Dholakia
My Lords, I thank my noble friend for his clear and concise Answer to the noble Lord, Lord Clinton-Davis. Does he accept that Britain has an enviable record in promoting human rights and the rule of law throughout the world? What sort of response does he think he would get from people like Mugabe if we were to withdraw at this stage from the provisions of human rights legislation in this country?
Lord McNally
My noble friend asks a helpful question in putting this matter into perspective. My right honourable friend the Foreign Secretary has quite rightly made human rights, and Britain’s championing of human rights, part of his soft diplomacy strategy. It has been greatly to his credit and to the credit of the United Kingdom. It is important that we have a record that we can be proud of when we look at other regimes and criticise them about their human rights record.
Lord Tomlinson
The Minister gave an unequivocal Answer to the Question about withdrawal. However, can he be equally unequivocal about any plans to dilute the application of the European Convention on Human Rights to things where there is a conflict between the judgment of the court in Strasbourg and the view of a Government in the House of Commons?
Lord McNally
My Lords, I think that “dilute” is the wrong word. As the noble and learned Lord, Lord Neuberger, pointed out in his interview the other day, the relationship between our Supreme Court and the Strasbourg court is a healthy one of learning from each other and looking at each other’s jurisprudence as it develops. What we have been doing, and one of the proudest things I have been involved in as a Minister, was the Brighton conference on the workings of the court which looked at how we can build in a subsidiarity to take notice of the importance of national supreme courts while still retaining the strength and the moral authority of the European Convention on Human Rights.
Lord Faulks
My Lords, whether human rights are best protected by the Supreme Court, by Parliament or by Strasbourg, all noble Lords are anxious to protect them. However, even human rights have a cost. Public authorities are spending a great deal of money trying to make their policies compliant with the convention—rather like with health and safety—when the Strasbourg jurisprudence is extremely uncertain. The diminishing pot of legal aid is being spent on often unmeritorious cases about human rights, rather than on far more meritorious cases. I was one of the commissioners, and we were not allowed to consider questions of cost. I ask the Minister whether the Government, in the whole human rights debate, could tell us how much human rights is costing.
Lord McNally
I am not able to put a cost to human rights any more than to anything else. I see in government—and I suppose that we have a lot of experience of local government in this House—how agents of the state, as the noble Lord said, when making decisions have in the back of their mind that they have to clear certain hurdles about respect for the individual citizen. To me, this is a prize beyond cost.
Lord Beecham
Can the Minister match his welcome, unequivocal statement that there is no intention to withdraw from the European Convention on Human Rights on the question of repeal of the Human Rights Act? Will he confirm that the Government have no intention to seek to repeal the Act?
Lord McNally
Both publicly and privately, I sense that there is no majority in this Parliament in favour of repeal of the Human Rights Act. If an individual party at the next election wants to put repeal in its manifesto, that is its privilege and right, and it will have to take that to the hustings. It will not be in the manifesto of the Liberal Democrats.
Damages-Based Agreements Regulations 2013
Lord McNally Excerpts(13 years, 4 months ago)
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Lord McNally
That the draft regulations and orders laid before the House on 14 and 21 January be approved.
Relevant documents: 16th and 17th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 February.
Probation Service: Community-sentenced Offenders
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Lord Ramsbotham
To ask Her Majesty’s Government whether the management of community-sentenced offenders will remain the responsibility of the Probation Service.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Transforming Rehabilitation consultation by my department closed on 22 February and we are now considering our response. We have proposed opening up the market for rehabilitation services to a more diverse range of providers, but the public sector will retain ultimate responsibility for public protection and will manage directly those offenders who pose the highest risk of serious harm to the public.
Lord Ramsbotham
My Lords, I thank the Minister for that reply. Last week, the Justice Secretary appeared before the Justice Select Committee in another place and said that we have a duty to supervise offenders in a consistent way and that he wanted to make the probation world more independent of Government and the big bureaucratic documents that tell them how to do their job. For 100 years until recently dissolved by its subordination to prisons, the probation service, in partnership with the police and the courts, was responsible for the consistent supervision of community-sentenced offenders independent of such interference. Can the Minister tell the House how the Justice Secretary’s proposed division of responsibility for the supervision of different types of offender between probation and an unknown number of untried private and voluntary sector organisations will better honour his duty of consistency?
Lord McNally
I hear the growl from the Benches opposite, but it is interesting that we are using the 2007 Act to carry through these reforms of probation, so they are not exactly being original in terms of how we should develop these matters. I do not take fully the point made by the noble Lord about going into the unknown. The fact is, as those noble Lords opposite who have had dealings with these matters will know, that the voluntary and the private sectors have been involved in offender management for a very long time. We are trying, within a very tight budget, to see whether we can reform the probation service and dealings with offenders in order to bring in the best of what works outside. It has been interesting to learn that good ideas on offender management are not constrained simply to the probation service. As I said in my original reply, the public sector has ultimate responsibility for public protection, but we think we can deliver a reorganisation that also makes use of the wide variety of experience and expertise that exists in this area.
Baroness Smith of Basildon
My Lords, I have listened carefully to the answers given by the Minister. He will be aware that one of the most important things for the probation service is that there is public confidence in the work that it does. Part of that public confidence comes from the transparency of having information about the work that it does, and understanding what works and what is most effective. In his Answer, he said that the public sector has the ultimate responsibility. Does that mean that all services, even those outsourced to private companies by the Government, will still be subject to freedom of information?
Lord McNally
That is one from left field. I will have to check on that and write to the noble Baroness. However, as she knows, my inclinations are that, as far as possible, freedom of information should extend to all work that is conducted by the private sector, or is covered by the contractual agreement between the public and private sectors, which would allow access to information. I understand the point she makes, and will write and make the letter available to the House.
Baroness Hamwee
My Lords, the probation service is widely admired for its professionalism and general excellence. What ideas do the Government have to make sure that we not only do not lose those but indeed capitalise on them?
Lord McNally
My Lords, at no stage—either at this Dispatch Box, in private meetings or in any other meetings elsewhere—have I ever said anything other than that I am in awe of the work that our probation officers do. It will remain a matter of concern that we get the balance right between our public probation service and the new ideas, initiatives and ways of doing things that we hope this rehabilitation revolution will bring about. I personally hope that one of the outcomes of this rehabilitation revolution will be a probation service that is enhanced in public respect and public confidence. Indeed, I would look to the day when we have a chartered institute for probation, with the same kind of professional status as other professions.
Lord Elystan-Morgan
My Lords, the Minister speaks of a new way of doing things. Is it not the case that when legislation was passing through Parliament, we were told that certain bonuses of a financial nature would be paid to those supervising the system, based on success? Will there be an aliquot penalty in the case of failure? In the case of success, what will be the indices of performance in respect of which success will be judged and at what level?
Lord McNally
My Lords, part of the exercise is what is roughly called “payment by results” for those that take on these undertakings if they manage to achieve a rehabilitation, which means people not reoffending within a specific time. Part of the problem we face is that nearly half of offenders leaving prison reoffend within one year. We hope that the system will incentivise those providing services to think creatively about rehabilitation. The worst thing for victims and the taxpayer is this revolving door, which successive Administrations are faced with and which, I believe, the rehabilitation proposals we are bringing in give us a real chance of breaking into.
Freedom of Information Act 2000
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Lord Wills
To ask Her Majesty’s Government what plans they have to amend the Freedom of Information Act 2000.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government intend to amend the Act to give the Information Commissioner more time to prosecute alleged offences under Section 77 of the Act and introduce a dedicated exemption for prepublication research. Other parts of our response to post-legislative scrutiny will be implemented through secondary legislation codes of practice and guidance.
Lord Wills
My Lords, I very much welcome what the Minister has just said about giving the Information Commissioner new powers but I hope he will recognise that suggestions have been made by other Ministers—not this Minister, whose commitment to freedom of information is exemplary—that they will tighten the Act. I hope this Minister will recognise that tightening the Act in the way that has been suggested will damage transparency. He will recall that the previous Government at one point proposed to increase fees for accessing freedom of information requests and then dropped the proposal when they realised the damage that that would do to transparency. Are the Government now downplaying that risk to transparency, and doing so at a time when the Francis report into Mid Staffordshire shows just how dangerous damaging transparency can be?
Lord McNally
My Lords, it is true that we are looking at other aspects of the post-legislative scrutiny through secondary legislation. However, I can assure the noble Lord that my commitment, and the Government’s commitment, to transparency and freedom of information, which I see as twin tracks of government policy, remains as steadfast as it has always been. Ideas and information about other aspects of the post-legislative scrutiny fully justified the exercise and I compliment my right honourable friend Sir Alan Beith and his committee for doing an excellent job. It has done much to embed freedom of information in our political culture.
Lord McNally
It is something that was considered by Sir Alan’s committee and recommended as a good idea. It has its attractions, but it also has its downsides. On balance, the Government decided to retain anonymity for freedom of information requests because they felt that not doing so would inhibit people coming forward with such requests.
Lord McNally
I hear what the House is saying. It was a very tight judgment and a lot of discussion went on in government about it. There certainly was not any sinister desire by the Government to protect information. It was more a decision resulting from a very tight discussion that the idea of anonymity for those making requests was still an important principle to preserve.
Lord Marks of Henley-on-Thames
My Lords, the Government have been successful in extending the Freedom of Information Act in line with the coalition agreement by adding to the bodies which are subject to the Act and by providing for electronic data sets to be made available. Can the Minister assure the House that there will be no reversal of this process, and in particular, that there will be no extension of the Government’s power of veto and no further fees, particularly for appeals to information tribunals?
Lord McNally
I do not think I can give an absolute assurance on that. We decided to retain the veto following discussions that had gone on since the start of the freedom of information debate about whether, at the very heart of government, a safe space was needed for genuine discussions. At the moment, I am having discussions with colleagues about these ideas and principles and in due course I will inform the House and give it an opportunity to comment on this. It is always an interesting balance. We have faced this problem for a decade or more since we debated these principles in this House. Indeed, we had a very interesting debate a few months ago where a whole clutch of former mandarins gave their opinions about what is called the “chilling effect” of freedom of information. I do not accept that there is such a chilling effect, but I do accept that it is right—as is the proper intention of the post-legislative review of the Act—that we look at how the Act is working and we will come back with recommendations in the areas raised by my noble friend.
Baroness Uddin
My Lords, further to the question of my noble friend Lord Dubs, does the Minister not accept that his response and the Government’s current position on freedom of information are flatly contrary to the position of openness and transparency in protecting those who ask the questions and not protecting at any level those who are being asked the questions? Does he not accept that this is totally contrary to the principles and ethos of the Freedom of Information Act?
Lord McNally
On the contrary, my Lords. If you are asking questions of power, there is some reassurance in the fact that the system giving you the right to ask those questions allows for anonymity. It certainly is not an abuse of power; it is rather, as the debates have shown over the years, that anonymity gives protection and encouragement to those who want information.
Lord Lloyd of Berwick
When the Government receive, as they do from time to time, independent legal advice, is there any reason why that advice should not be made available under the Freedom of Information Act? Should there be an absolute rule against independent legal advice being made available?
Lord McNally
Whenever the noble and learned Lord rises to his feet, a certain tingle goes down my spine—doubly so when he is asking about a matter legal. I am not sighted on that entirely and I would feel far safer if I were to take advice and write to him.
Conditional Fee Agreements Order 2013
Lord McNally Excerpts(13 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Conditional Fee Agreements Order 2013.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments.
Legal Aid (Information about Financial Resources) Regulations 2013
Lord McNally Excerpts(13 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Legal Aid (Information about Financial Resources) Regulations 2013.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.
Civil Legal Aid (Costs) Regulations 2013
Lord McNally Excerpts(13 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Civil Legal Aid (Costs) Regulations 2013.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.