European Union Referendum Bill
Lord Wigley Excerpts(9 years, 8 months ago)
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Lord Hannay of Chiswick
Yes, I would be delighted to do that. I have been interrupted rather a lot of times. I will reply to the noble Lord, Lord Pearson, before following that sage advice. I was not addressing just the question of our trade with other member states. There will be plenty of other opportunities to do that. I was talking about our trade with the rest of the world. If the vote goes for withdrawal, we will have to construct a new British tariff. If that tariff is above the level of the common external tariff, we will have to pay compensation under the WTO rules to every other member of the WTO. These serious matters need to be brought out into the open. I beg to move.
Lord Wigley (PC)
My Lords, I support the noble Lord, Lord Hannay. I cannot see how any reasonable person could possibly object to the amendment, in terms of getting the information that is needed to enable people to come to a balanced decision. Of course, whichever way they vote, the information should be neutral and factual.
My Amendments 28 and 29 are linked to this group and refer to two specific areas, including agriculture, which the noble Lord, Lord Grocott, addressed a few moments ago. Amendment 28 raises the issue of European Union structural funds. This area is of great significance to two-thirds of Wales, which are within the structural fund area and which, since 2000, have received several thousand million pounds, first from Objective 1 funding, then convergence funding and now the current round that runs to 2020.
Currently many organisations in Wales in the public and private sector look to these sources of funding to make a vital difference. If leaving the European Union during this time is going to change the entitlement to such funding, it clearly has a direct, immediate effect on such organisations, whether universities, local government or people in the private sector. They have a right to know about this.
It is not unreasonable to ask for an assessment in the generality but also specifically with regard to the regions that have a direct entitlement to such funding. Some areas, such as South Yorkshire, Merseyside, Cornwall and Northern Ireland and, in the past, the Highlands and Islands of Scotland have benefited from such funding. It is of material consequence. It is made available on the basis of the low level of the economic performance in areas such as Wales. Our GVA per head now stands below 75% of the UK average, because of the failure of successive economic policies. We will not go into whether that failure is on account of what has been done here at Westminster or in the Assembly, but the funding is because of that failure. We are entitled to such funding to try to trigger the economy. Cornwall has undoubtedly succeeded to a considerable extent by using this funding, perhaps better than we have in Wales. Although the authorities in Brussels say that the way in which Wales has used the funding has been an example to other parts of Europe, none the less, we still have these economic problems. People in Wales deciding whether to vote to leave the European Union or to remain in are entitled to some assessment of what effect a loss of this funding might have.
I take the point that was made in the context of the earlier exchanges that perhaps the Treasury would make up for this loss. But history does not fill us with a lot of confidence about that. Until 2000, we were not getting anything at all, because the Treasury refused to put forward proposals to Brussels that would entitle Wales to such funding. It drew a map, divided from north to south, and made sure that neither side of that line was entitled to get the money. It was only when a new map was put forward that we got our entitlement.
Then there was the experience even after we started getting money from Brussels. In 2000, when the Objective 1 money was coming through, we found that it was not being passed on by the Treasury to the National Assembly. We were expected to spend the money but were not getting the contribution from the Treasury because we were already being looked after very well indeed. I went off to Brussels with a delegation to see the then Commissioner for Regional Policy about this. When we explained the situation to him, he turned to his officials and asked in French, “Could this possibly be true?”. His officials confirmed that, yes, Brussels was passing the money over to the Treasury in London and it was not being passed to those areas that were entitled to get the funding. It was outrageous. To his credit, the Commissioner took the matter up with the then Chancellor of the Exchequer, Mr Gordon Brown, and in the financial review a few months later—in July 2000 or 2001, if I remember right—an adjustment was made of the £442 million that had come from Brussels which was meant for Wales but had not been passed over. How on earth can we be expected to have full confidence that London will step in and fill the breach when that has happened in the past? At the very least we should have an assessment made as to what the effects would be, not just in Wales but in the other areas that might be affected by this.
Amendment 29 moves on to the question of agriculture. Whatever the pros and cons in various parts of the United Kingdom of the common agricultural policy may be, the farming unions in Wales have no doubt whatever what the impact will be, as 80% of farm incomes in Wales are dependent on Brussels. Of course, we will be told, “Ah well, that will be made up for again”. Are we going to go back and have something like the Milk Marketing Board regime or the type of sheep meat regimes that we had prior to the European Union? So much of our market for sheep meat is in Europe and the dependency of sheep farmers in particular on the European Union is very considerable indeed. I am not saying that I know all the answers to these arguments—I do not—but the farmers and those in the universities and other sectors of the economy are entitled to know them. At the very least, clear and unbiased statements about the factual reality should be put out by a Government who have looked at both sides of the argument.
At present, Wales gets a net advantage of some £40 per head per annum from the European Union. It is not a tremendous sum but it is an advantage—other areas will no doubt have a disadvantage. People should know, to the best of our ability to tell them, what the effect of pulling out would be. That is the point of these amendments, which have the same objective as the earlier amendment that has been moved. I very much hope that the Government will give some firm commitment on these matters.
Lord Blencathra (Con)
My Lords, I will speak to my Amendment 27. I agree entirely with the noble Lord, Lord Hannay, that this group of amendments and the consequences of leaving or staying in are among the most important that we shall debate in this House. The noble Lord, Lord Hannay, has moved an amendment asking the Government to report on the possible consequences to the UK if we vote to leave. I believe it is equally important that we have an assessment of the likely consequences if we vote to stay in. Some might ask how one can report on that when one has no idea what the EU might agree to in a future treaty. That is true, but only to a certain extent. There is a track record here; the EU has a bit of form on this. It is not as if we have not been here before on numerous occasions.
In 1989 we had the Delors report, calling for full European integration. It was pooh-poohed by the UK Government and press as something that was never going to happen, but that ignored the inexorable drive to ever-closer union—though that was not the terminology then—that led to the Maastricht treaty. We got qualified majority voting and the start of interference in justice and home affairs measures, as well as a host of other unexpected consequences. Of course, the British people were given no say in a referendum. So we got the Delors report, warts and all.
About 10 years later, we had the Valéry Giscard d’Estaing grand report, the draft treaty establishing a constitution for Europe. This, again, was pooh-poohed by EU supporters as not being a radical change, and nothing to worry about. If I recall, the UK Government and press condemned it and said that it should not and would not happen. It was vetoed by France and then the EU did what it always does; it reintroduced it in slightly different clothes as the Lisbon treaty. Some 95% of the EU superstate constitution proposed by d’Estaing was incorporated into the Lisbon treaty and the name was changed from “constitution” in order to deceive the electors of Europe. Once again, the British electorate were given no say.
The point I am trying to make with these two examples is that that there is a track record of the EU taking ever more power from national Governments and vesting it in the Commission. Now we come to the core of my amendments, based on the five presidents’ report, published in June or July this year. If we say to the British people, “Look at this report; this is what you can expect if we stay in”, the response of the BSE campaign will be that it is just some vague suggestions; it may not happen and if it does, it will be years away and will apply only to the eurozone members in any case. In other words, these are the same lines we were spun about the Delors report and the d’Estaing report, but a few years later they became binding treaties.
Lord Grocott
My Lords, I am sure the noble Lord, Lord Wallace, will agree that it is essential to any dispassionate debate—if such a thing is possible—that both sides of the argument should be presented. All the amendments in this group are of a similar character—they all seek further information to present to the British public before the British public make a very important decision. I do not have a problem with any of the amendments because I am in favour of the British people having all possible information. I would like them to have even more information, were it possible.
I cannot find a way of tabling an amendment on this subject that would be in order, but I would love the British people to be able to consider—on the principle that it is better to look in the history book than in the crystal ball—the last time that a major decision in relation to the European Union was made in this country, which was when we decided not to join the euro. I think that that was a splendid decision by the last Labour Government. They went to some lengths to present to the British people the facts of the arguments of those who were in favour of Britain joining the euro as well as the facts as to whether the forebodings of their prophets of doom came into being. I remember that there were all sorts of arguments about the collapse of inward investment into Britain should we not join the euro, and so on. However, that point is out of order so I shall not speak to it at length.
The only problem I have with these amendments—it was part of my interventions on the noble Lord, Lord Hannay, although it does not, in my book, disqualify the amendments—is that I have considerable doubts that I could say that the word “objective” is a characteristic of every amendment in this group. By way of illustration I will refer again to the common agricultural policy. I mentioned the amendment in the name of the noble Lord—I was about to call him my noble friend, although he is not far off—Lord Wigley, with whom I agree on so many things. I agree with him very much that it is extremely important that there should be support for British agriculture in difficult terrain such as north Wales. The noble Lord knows far more about that than I do, but it is extremely important that there is support for that economic activity in our country. However, if we are to have a report on the consequences of coming out of the common agricultural policy, do we or do we not include the presumption—and only a fair-minded person would have to make this presumption—that some of the moneys currently spent by the British taxpayer on the common agricultural policy should be spent directly on British agriculture by the British Treasury?
Lord Wigley
That is, indeed, a central question. However, it is not a matter on which we should make an assumption. We should be told whether or not that will be the case.
Lord Grocott
It would be fine if that happened, but the figures are worth reflecting on. I find it difficult to imagine that the contribution to British agriculture would be less than it is currently via the common agricultural policy. I took the precaution of getting an up-to-date figure—I assume that responses from Ministers are accurate on these matters. I asked the Government two or three weeks ago what the current cost of the common agricultural policy was and the answer from the noble Lord, Lord Gardiner of Kimble, was €55 billion for 2015. He went on to say that the CAP accounts for 40% of the EU budget.
Noble Lords who regularly contribute to economic debates—which I do not—will be able to do these figures in their heads. However, €55 billion is the total cost of the CAP. That represents 40% of the EU budget. The UK contribution to the EU budget as a whole is €16 billion. Let us work that out. Off the top of my head, I think the British contribution to the cost of the common agricultural policy is 2 billion or 3 billion euros. I repeat that I have doubts about the use of the word “objective” in this kind of discussion, but it seems that anyone considering this objectively would have to consider that a very substantial contribution to agriculture—that vital industry in this country—would have to come from the British Exchequer if there were less support coming via our contributions to the CAP.
Lord Dobbs
My Lords, the noble Lord, Lord Wigley, said that he could not see how any reasonable person could possibly object to these amendments. I hope that I will be able to open his eyes just a little. We have already heard, even in the extended debate on this proposal, just how easy it is to slip into outright campaigning. It seems to be impossible to separate the facts from the campaigning. They say that there are facts, political facts and campaigning manifestos. I happen to have written a few campaigning manifestos in my time. I know what wicked statements they are, and I am very glad that I have left all that behind me and now simply write works of fiction.
The amendments of the noble Lords, Lord Hannay and Lord Blencathra, and others call for an official report—but could any official report ever be worth the paper it was printed on? For instance, an official report at the start of this year that talked about immigration policy in Europe would not have known how events were going to impact on it, and would presumably have looked totally different six months later. The noble Lords, Lord Wigley and Lord Hannay, ask us to gaze into the future of agricultural policy. What will happen if we vote to leave? It depends who is making those decisions after we leave. You do not have to be a political seer to suggest that there is a strong possibility that, if we decide to leave the EU, we will not even know who is going to be Prime Minister six months after that vote. That is the political reality.
Lord Wigley
Does the noble Lord not accept that the Prime Minister himself, when he comes to a judgment on whether to recommend the package he will have renegotiated, will be making some assessments—presumably quantifiable—of the implications of that renegotiation? Is it not reasonable that those who are asked to vote on this have as much information as possible?
Lord Dobbs
I agree entirely with the noble Lord that they should have as much information as possible. However, as well as known unknowns there are also unknown unknowns—as someone once said—which are completely dominant in this area. As far as the EU is concerned, it is the unknown unknowns that have come to the fore and gained strength in recent months and years.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, I am grateful to all noble Lords for their contributions to what has been an extensive and certainly an important debate today. This Bill sets the stage for one of the biggest decisions that the British public have been asked to make in a generation. It is absolutely right to say, therefore, that the British public should expect to be able to make an informed decision and to be provided with information about the possible consequences of the decision they take when they cast their vote.
The debates today give the Committee the opportunity to consider what information it is appropriate and/or necessary for the Government to provide at the conclusion of the negotiations for a reformed EU. As the Electoral Commission has recognised, it is the designated campaign organisations that will play a crucial role in providing such information. This is the established practice in the United Kingdom and is in line with the Council of Europe’s best practice guidance on referendums. However, as the noble Lord, Lord Hannay, has argued, along with many other noble Lords, there may also be a role for the Government. That issue has been fully discussed today, and there are further matters relating to that in other groups that we will discuss later today.
Each of the amendments in this group creates a statutory requirement for the Secretary of State to publish a report no later than 12 weeks before the date of the referendum and to lay such reports before each House of Parliament. Before I refer to the timeframe itself, in line with the normal practice in these circumstances, I should comment on the different content required in each report as set out in the amendments themselves.
Amendment 21, in the names of the noble Lord, Lord Hannay, the noble Baronesses, Lady Morgan of Ely and Lady Smith of Newnham, and my noble friend Lord Bowness, requires the Government to publish a report that sets out information on the consequences of withdrawal from the European Union. The report must cover: the effect that withdrawal would have on the rights of individuals in the UK, and on the rights of UK and EU citizens living in the EU and UK respectively; the legislative consequences for each government department and the devolved Administrations; and the impact on social and environmental legislation, law enforcement, security and justice. Many noble Lords have intervened in other Members’ speeches with regard to these matters.
This has been a very useful opening salvo to the debates today on information, but I rather feel that the noble Lord, Lord Hannay, will not be too surprised if I remark that his amendment is highly prescriptive. I know that he meant to set out a very good construct around which other noble Lords could contribute; he has achieved just that and I am grateful to him. As for the content of the amendment, the duties that it imposes are onerous. That is not necessarily a reason to not do this, but I am very mindful of what my noble friend Lord Higgins said when he posed the question of whom these reports are meant to be for. That is what we need at the core of our deliberation. The public are educated and sophisticated, and those of us who are unelected take those who cast their votes for another place very seriously indeed. When we go on the doorstep, we listen to what they say. We are confident, as we should be, that they want to see clear, objective information, but the question to consider is how that will be best delivered. How will it be objective? As my noble friend Lord Higgins said: how will it be accessible? We want not to overwhelm people with detail but to enable them to make an informed decision.
Amendment 21 would also need to be carefully reworked before it could appear in the Bill. For example, the references to “European” or “United Kingdom citizens” and to “devolved jurisdictions” would need to be corrected. We would need to work out whether there was an intended distinction between the use of the terms “legislative” and “statutory”. We would also need to clarify what was intended by the term “social legislation”, which is at present so broad as to be unclear. The very broad nature of the examples that noble Lords gave showed the difficulty with the definition. We would also need to think carefully about which of the areas in question, such as environmental legislation, were devolved matters.
I know the noble Lord, Lord Hannay, has used this as a valuable spur to debate, but I should put on the record why it would not be appropriate to accept the amendment, which appears to require detailed analysis of future discretionary changes to devolved legislation, without first consulting the devolved Administrations. I hope that noble Lords will accept that it would be inappropriate to commit at this stage, on behalf of four different Governments, to producing such broad analysis. To condense this into one report could be confusing to those who need to make a decision at the ballot box.
Amendment 27, tabled by my noble friends Lord Blencathra, Lord Hamilton and Lord Flight, would create a statutory requirement for the Secretary of State to publish a report and lay it before both Houses of Parliament 12 weeks before the date of the poll. Unlike Amendment 21, this report must set out the consequences for the United Kingdom of remaining in the European Union. The amendment has given the Committee a valuable opportunity to broaden the debate on what constitutes information appropriate for the Government to publish. In that respect, it assists the debate today. However, like Amendment 21, this is a highly prescriptive amendment that sets out six areas that the report must cover. These include the effect on the UK’s social security systems, its insolvency law and its place on the IMF if it were to remain in the European Union. Noble Lords will be aware that providing the level of detail required by this amendment on a wide range of policy areas could involve a high degree of speculation. We would all be cautious about that, I hope. Without a crystal ball—I do not have one to hand—I fear that we could struggle to anticipate future policy developments at EU level. I know, as I have heard it from all quarters around the Committee all afternoon, that noble Lords want to ensure that any information provided to the public is well founded and assists an informed decision.
Amendments 28 and 29, from the noble Lord, Lord Wigley, and Amendment 30, from the noble Baroness, Lady Morgan, focus on the consequences of a withdrawal from the EU on structural funds, support for agriculture and Gibraltar. Amendments 31 and 32, from the noble Lord, Lord Green of Deddington, focus on the consequences on net migration of remaining in the EU and access to citizenship for non-EU citizens within member states. I will make two points with regard to all these amendments. These are highly specific obligations. The question we need to consider is whether every one of the requirements set out in these amendments represents the extent of the information that the general public would need from the Government or not. We come back to the question of what it is right for the Government to propose for the public—which includes us as voters—to be able to make a well-informed decision. Noble Lords clearly already have varied views on that, and we need to see how we take that forward to be able to come to some common conclusions at some stage.
Lord Wigley
I thank the noble Baroness for the attention she is giving this. If the Government were unable, after considering this matter, to give a commitment to bringing reports on structural funds and agriculture—which my two amendments address—would she rule out the right of the National Assembly for Wales to bring forward its own reports and its own interpretation of the situation?
Baroness Anelay of St Johns
My Lords, it would be wrong of me to give a commitment on that until I have come to the conclusion of what I may or may not be able to offer. I do not want to provide too much hope about what I am going to be able to offer, but I hope it will be seen to be constructive, which is how it is intended. I know the noble Lord makes a very serious point in his intervention. At the base of this, and what needs serious consideration, is what the Government should be providing and what should be provided by campaigning bodies.
European Union Referendum Bill
Lord Wigley Excerpts(9 years, 8 months ago)
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Lord Hamilton of Epsom
My Lords, this is a rather more modest amendment, as you will see. Unfortunately, I cannot plead in aid the support of the Electoral Commission, which for some reason does not seem to want to support the amendment. The only point I would make about the question in the Bill is that in all previous incarnations, the Electoral Commission has always taken things in alphabetical order. When you have a voting paper, if your name is Brown, it comes higher than somebody called Smith. That is an arbitrary rule that has been imposed for all voting papers. On that basis, it is somewhat confusing that in this case the Electoral Commission recommends that we do not go in alphabetical order. I do not quite understand what the thinking of the Electoral Commission was on this. I think, having moved once already on whole issue of the question, it feels that it has done all it can, but it is rather odd that it has not followed the precedent that it has set in the past. I beg to move.
Lord Wigley (PC)
My Lords, I shall speak to Amendments 5, 6 and 7, which are grouped—again, rather strangely—with the amendments of the noble Lord, Lord Hamilton. I suppose it is to do with the wording, and that is the common thread.
Before going into detail, perhaps I may note that I did not speak at Second Reading, and I shall be very careful to take good note of the strictures of the noble Baroness, Lady Anelay, on making Second Reading speeches—I will not do that. My noble friend Lord Elis-Thomas spoke on that occasion, and I was delighted to be on the same side as him, because back in the 1975 referendum, when I was certainly a “yes” voter for Wales and the UK to remain members of the European Community, he was on the other side, as was almost the rest of my party. I am glad to say that my party has come round. I am still totally committed to the European ideal and shall most certainly campaign, wherever I can, to ensure that the UK remains part of the European Union.
Baroness Anelay of St Johns
My Lords, I will first address the amendments in the name of my noble friend Lord Hamilton. As other noble Lords have commented and as my noble friend explained clearly, with his Amendments 3 and 4 he seeks to swap round part of the referendum question from:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”,
to, “Should the United Kingdom leave the European Union or remain a member of the European Union?”. The Government accepted the advice of the Electoral Commission about the text of the question after it carried out a consultation following the publication of the Government’s Bill. The Bill was amended in another place in accord with the Electoral Commission’s recommendations at that point. I understand my noble friend’s point. He wants to see whether there is a level playing field. Is it fairer to have the phrases in the Bill in the order he prefers? I note in passing that he has not tabled corresponding amendments to the Welsh version of the question, but we will come to Welsh in a moment.
The Electoral Commission carried out extensive analysis of the referendum question before recommending the formulation that currently appears in the Bill. Its briefing makes the point that it is concerned about my noble friend’s amendments and reminds the House that its research found that starting questions with “leave” was less intuitive and more leading than starting with “remain”. In other words, it argues that if we were to accept my noble friend’s amendments and change the order, we would be unsettling a level playing field and drawing more attention to saying that people should vote to leave. In that circumstance, I am not minded to accept my noble friend’s amendment but I appreciate the way in which he has brought it forward to give us the opportunity to consider the question itself.
Amendments 5 and 6 in the name of the noble Lord, Lord Wigley, also refer to the question but look at the way in which it has been provided in Welsh. I am grateful to the noble Lord for making the point that Amendments 5 and 6 are probing amendments. They would change the wording of the Welsh language that would appear on the ballot papers in Wales. As with the English language question, the wording was recommended by the Electoral Commission following a period of research over the summer. I will say one or two words about that research and our response to it because the matters were also raised by the noble Baroness, Lady Morgan.
The research included consulting the Welsh Language Commissioner, as well as members of the public and other bodies, including local government bodies. As the Electoral Commission noted, its research explicitly considered the words that appear in the noble Lord’s amendment. The participants whom it contacted and researched deeply preferred the formulation in the Bill to that proposed by the noble Lord. I certainly do not have knowledge of Welsh, so I have to look at the research.
I have to say that I miss hearing Welsh spoken in the corridors here, as I did commonly when Lord Roberts of Conwy was in conversation with, I think, a former Leader of this House, Lord Cledwyn. It is a melodic and fascinating language. All I did was to teach for five years at a Welsh girls’ school but, regrettably, I did not learn Welsh during that time.
The Electoral Commission, in carrying out its research, tested Welsh versions of the questions during its fieldwork. It found that, overall, participants did not like the word “para”, which is not the word used in the noble Lord’s amendment but is close to it. It was felt that “para” sounded like other words, such as parachute or the mutated version “bara”, which is the Welsh word for bread. People said in particular that they did not like the alternatives that are specifically in the noble Lord’s amendment—that is, “barhau” or “parhau”.
Lord Wigley
Obviously I shall not chase this matter for any length of time, but has the noble Baroness considered the methodology that may have been used by the Electoral Commission? She is putting all her eggs in that basket and, if there were any question as to the methodology, the conclusions might also be suspect. I ask her only to look at this matter again between now and Report so as to be absolutely sure.
Baroness Anelay of St Johns
My Lords, I will certainly be happy to look at the methodology adopted by the Electoral Commission. In my early life I was a sociologist—although I hardly dare say that in front of my noble friend Lord Forsyth—and I can say that, looking through the report, the Electoral Commission has carried out research through citizens advice bureaux. The methodology it has used shows that it has taken advice not only from organisations but from individuals, and from individuals not only in one particular area but in sample areas around the country. Therefore, I respect its research, although I will of course consider the matter.
The noble Lord referred in particular to the word “aros”. I understand that most participants noted that either “aros” or—I apologise for the fact that I shall have to spell this—“ddal i fod” could be used in the referendum question. Both options were considered to work well, but in fact “aros” was felt to be more straightforward and clearer.
We would say that the Electoral Commission carried out proper research but, in the light of the noble Lord’s request, of course I will consider what he said. If I may, I will come back to him outside the Chamber so that we may talk about this before Report. I hope that that will be helpful.
The noble Lord’s Amendment 7 seeks to ensure that the English and Welsh language questions and answers are given equal prominence on the ballot paper in Wales. That has indeed been the practice on ballot papers in Wales. I have copies of a range of them, which show that the options have been arranged very carefully side by side. The noble Lord’s amendment gives me the opportunity to explain that, but the amendment itself does not perhaps give great clarity as to how a ballot paper would achieve that balance. I am very happy to share that textual information with the noble Lord if he so wishes.
Finally, I invite my noble friend Lord Hamilton to withdraw his amendment, if he is so minded. I hope that he will be, and I hope that when it comes to be called, the noble Lord, Lord Wigley, will choose not to move his amendment.
Lord Foulkes of Cumnock
No, I do not want to change that. People can join as boy soldiers, and they can prepare to defend their country. If they are ready to prepare to defend their country, they should be able to vote in the referendum.
Lord Wigley
My Lords, I shall speak to Amendments 9 and 20, in my name, which are linked to the amendment moved by the noble Lord, Lord Tyler, and are aimed at achieving the same objective. We have all seen a number of different proposals for doing that, but there seems to be a broad-based feeling that, for this purpose, the vote should be extended to 16 and 17 year-olds throughout the United Kingdom.
Many of the arguments have been ably put by the noble Lord, Lord Foulkes, on the basis of his experience of the Scottish referendum. I too campaigned in the Scottish referendum—although I am sorry to say that we were not on the same side, and that I probably campaigned less successfully than he did. One thing that we could all see, whichever side we supported, was the enthusiasm that was there and the willingness to engage. I am sure that a lot of young people will take what they got from that referendum campaign with them through the rest of their lives. I very much hope that the lessons from Scotland will be borne in mind, and that even if we do not come to a conclusion on this matter tonight at Committee stage, they will be borne in mind on Report.
Another factor that has not been mentioned is the way in which the interest and enthusiasm of 16 and 17 year-olds, and other young people, can affect older people. Older people find that they have to engage with arguments that perhaps they have not previously thought through themselves. Some may be led to follow the line taken by 16 and 17 year-olds and some may not. Certainly in Scotland many families were divided—and not necessarily on an age basis. I accept that we cannot say which way young people’s votes went, but my goodness, they made a difference to the process of holding a referendum, and the longer-term benefits were that people would be more active citizens as a result of their experience, whatever the outcome of the referendum might be.
I remind noble Lords that for a possible referendum in Wales on tax-varying powers—I believe that my noble friend Lord Elis-Thomas could confirm this—powers have already been passed over to the National Assembly by Westminster, so that any such referendum that may take place could be open for 16 and 17 year- olds to participate in. So the principle is being extended for the purpose of referenda. If it is valid in the context of a referendum on tax-varying powers, how much more so is it when such far-reaching decisions are being taken in the context of the relationship with Europe?
There has been talk in Scotland among some people—I do not necessarily agree with them—that there should not be referenda too frequently. I certainly feel in the context of Europe that we should not be having referenda too frequently, and a decision taken now is likely to stay with those 16 and 17 year-olds for the rest of their lives. It is very far reaching, and whichever way it goes, it will be with them.
The other consideration is whether they are equipped to make a decision. I feel that 16 and 17 year-olds—indeed young people generally—are more likely to be equipped to take a decision on this than many older people, if we are trying to come to a conclusion on capacity to take a decision. We have heard of three factors and I want to underline and stress one of them. We have heard about tax-paying and the ability to enrol, if not directly to fight, in the Armed Forces. That is the question and it was the basic rationale behind the creation of the European Union two generations ago. There were people with a vision that never again would our continent tear itself to bits with two bloody civil wars. These young people’s future can be determined by that. More than any other argument that we will pursue from now until the referendum, there is the question of holding this continent of ours together and not fighting each other in future. That must be basic. For that purpose, if for no other, those young people should have the vote.
Lord Balfe (Con)
My Lords, earlier this year I tabled a Private Member’s Bill that came so low down the list that it is never likely to be debated. It sought to extend to European citizens the right to vote in British elections, on the basis of no taxation without representation. If people pay taxes to the British Exchequer, the fact that they hold a different passport should not preclude them from exercising a say in how their money is spent. Having tabled that Bill, I went into the electoral system that we have in great depth. I did not realise exactly how complex it is. That certainly led me to conclude that a debate on the European Union Referendum Bill is not the place to start extending the franchise.
All my life I have heard guff about young people. When I was 16 years old and I became an official in the local branch of my trade union, everybody was saying, “Isn’t it marvellous. We really need young people here”. There is a sort of idolisation of the young. Of course, we need young people but we also need mature people. I spoke in our group meeting not so long ago against the idea of throwing all noble Lords out of this House when they get to 80. I am some way short of 80 but I do not propose to support something that disfranchises people because they have reached a certain age. I know some people of 60 who are nowhere near as bright as our good and noble friend Lord Plumb. He is not here at the moment, but at the age of 90 he gave one of the best speeches I have heard in the European Parliament recently when he spoke at the Former Members’ Association.
To get back to the point, when this was proposed initially, I thought it was tabled because the “yes” side thought that more young people would vote yes than no. I am not sure that that is the case now, having looked at the evidence. I now ask, why are we extending or changing the franchise on the back of a Bill about the European Union? Why are we making these changes when we consider the difficulties that we could have in registering the said people? I ask the noble Baroness, Lady Anelay, to respond to that. This is not like Scotland where there was a long lead-in to the referendum between the Act and the voting date. This referendum could take place within a very short time. For the moment, I am not convinced that the age and wisdom of a small group of people spanning just two years is worth making a fundamental change to the electoral system.
Baroness Miller of Chilthorne Domer
My Lords, I have a probing amendment in this group. Should the House decide at a later stage to enfranchise the group we have just been talking about, or the UK citizens we will be discussing in Amendment 14, the purpose of my amendment is to find out what work would need to be done by the Government and what preparations they would need to make in order to make that happen.
Lord Wigley
My Lords, I had not intended to speak in this debate but there is one dimension that perhaps I can bring to the debate that few others could.
In Wales, perhaps in Scotland as well, apart from constitutional nationalism there is always a fringe of more extreme nationalism and there are fringes that impinge on racism. It is something that throughout my political career I have tried to stand against. I have made the point time after time, ad nauseam, that all people living in Wales, whatever their language, colour or creed, are full and equal citizens of Wales. It is a concept of civic involvement in the community in which they live. These amendments touch upon this. If we are going to go down the road of starting to differentiate on the basis of some concept of nationality as opposed to citizenship, we could be in very serious trouble indeed.
Lord Wallace of Saltaire
My Lords, perhaps I might briefly raise the question of what sort of numbers we are talking about. The noble Lord, Lord Green of Deddington, suggested that we had 2.7 million. I have to say that sounds high.
I spent some time in the EU balance of competences review trying to discover the best estimates of the numbers of citizens from other EU countries in Britain and of British citizens in other EU states. I am well aware that it is very difficult to get the numbers but the best estimates we came up with, with the help of the Home Office, the FCO and the DWP, were 2.2 million British citizens living in other EU member states and 2.4 million EU citizens from other states living here. If we then ask how many of them have been living here for five years and how many are entitled to vote, we probably come down to something in the order of 1.5 million to 1.75 million on the five-year limit. I suspect a very substantial number of those will be of western European origin, including the many people who are in mixed marriages—British-French, British-German, British-Dutch, whatever it may be. Those are the sorts of figures.
It would help, if we are going to return to this on Report, if the Minister could manage to discover between now and then how many citizens of other EU member states are currently on the British electoral register. That figure must be obtainable. I accept that the estimate of how many there are in total in this country is very difficult to pin down but that other figure at least we must be able to have.
Mesothelioma
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Lord Faulks
As I indicated, the strategy is to ensure that the right questions are posed so as to elicit appropriate applications. The funding is very much there, but there is no point in having it unless it is directed towards research which can feasibly produce the result which, I am sure, everybody in this House wants to achieve.
Lord Wigley (PC)
My Lords, will the Minister go further on that? There needs to be a certainty that the money is there but the top-level researchers also need to be aware of it so that the money and the level of the research capability are brought together. Is the Minister confident that that certainty now exists? What can be done to make sure that the best researchers in the land are aware of it and can get engaged with this problem?
Lord Faulks
I can do no better than quote what Professor Dame Sally Davies, the Chief Medical Officer and chief scientific adviser, said yesterday. She thanked all those who provided information and said:
“With their help I believe we have built a genuine consensus—and a real impetus. I hope the research community will now respond by generating new research proposals that will provide robust evidence to help people with mesothelioma”.
Public Protection Sentences
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Lord Wigley (PC)
My Lords, is it not totally unacceptable that 600 people should be in for eight years when they might have expected to be out after two years; that, had this happened before IPP came in, they would not be in these circumstances; and that, if their cases were to arise today, they would not be in these circumstances? It is totally invidious that they should be locked up in this way and that the Government should allow this to happen.
Lord Faulks
That ignores the particular judgment exercised by a judge when sentencing an individual. We do not know precisely what the sentence would have been with the current sentencing powers. Of course, the party opposite introduced IPP sentences. There are now different sentences. These individuals were sentenced to IPP sentences because the judges considered that they represented a potential danger to the public. The Government have to bear that in mind.
Criminal Justice and Courts Bill
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Lord Phillips of Worth Matravers (CB)
My Lords, the unhappy cohort of prisoners to which this amendment relates linger in prison years after they have completed terms of imprisonment that reflect their culpability. They linger because of a statutory presumption that they are dangerous, which is discredited, has been repealed, and is surely, in the cases of many of them, unjustified. I find it impossible to envisage any credible reason why the Secretary of State has not exercised the power that he has been given to procure their release. His inertia belies the title of Secretary of State for Justice. This amendment cries out for the support of the House.
Lord Wigley (PC)
My Lords, I apologise for having missed the first two minutes of the speech of the noble and learned Lord, Lord Lloyd, in moving this amendment. As he and the Minister may well be aware, this subject has been exercised me considerably over many months now, having seen cases arising in Wales, and we had a debate on this matter earlier this year. I pay tribute to the way in which the noble and learned Lord, Lord Lloyd, has persevered with this important battle, by now over many months and years. The facts that he has put before the House this afternoon should most certainly be of concern to anyone who takes an interest in matters of law and who is concerned about the good name of the UK’s judicial system. The case is valid for the whole cohort, but I very much hope that, at least in the limited number of instances he has quoted, where very little risk is at stake, there can be no possible argument, even from the Government’s own standpoint, for not making progress on this matter. I follow the plea made by the noble Lord, Lord Carlile, that noble Lords of all parties across this House take this issue to heart. I very much hope that colleagues on the Labour Benches will stand up and be counted on this matter.
Lord Wigley
If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?
Lord Beecham
Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.
We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.
Assisted Dying Bill [HL]
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Lord Wigley (PC)
My Lords, I support giving the Bill a Second Reading. This is clearly a most difficult issue, in which we have to balance the sanctity of life with the freedom given to us as individuals to make choices. We have to balance the fears some hold about the abuse of any new provisions in the Bill with the real suffering experienced by thousands of people, so graphically described in so many letters they and their families have written to us. We have to deal with the present imbalance, whereby those lucky enough to have the material resources and family support can go to Switzerland to end their lives, whereas those without the resources or family support have to struggle on from day to day, suffering pain and anguish with no means of relief in their reach.
The existing prohibition on medical assistance to die causes some terminally ill people to take matters into their own hands, without adequate support, and some relatives to risk prosecution for helping a loved one die. The Bill would bring clarity to the law and provide greater certainty for terminally ill people and their loved ones.
The Bill has strict safeguards and eligibility criteria. People who are not mentally competent or terminally ill, such as disabled or older people who do not have a terminal illness, will not be eligible. A few weeks ago, the Supreme Court issued a clear warning to Parliament that, if it does not address the issue of assisted dying satisfactorily, the courts could. It is therefore vital that the Bill is allowed to progress through today’s debate and on to Committee stage, where it can be dealt with on a clause-by-clause basis.
There are of course dangers of abuse and there must be safeguards against the ultimate abuse of vulnerable people in their weakness, disability or old age feeling the pressure of relatives to bring about their own end for ulterior motives. However, in the Bill we are dealing with individuals who are already confronting their own deaths within months. Consequentially, families will also be aware that their support will be required for only a limited period of time.
Noble Lords may be aware that disability issues have been high on my agenda throughout my parliamentary career. I am clearly uneasy if this legislation causes anxiety to some disabled people. I emphasise only that the Bill is geared not to disability, but to terminal illnesses, which generally are totally unrelated to disability. If a blind person, a deaf person or a person who is wheelchair-bound comes into the ambit of the Bill, it is not because they are deaf, blind or cannot walk. It is because they have a condition from which they will die within months.
If further safeguards are needed, let us examine them in Committee. Let us not kill off the Bill today to close off the possibility of improving it. The prospect the Bill offers is to provide to those who wish it the possibility of a dignified death in their own homes with their loved ones around them, not the bleak alternative of going to a foreign country to a lonely death in strange surroundings. Compassion must surely demand that we do better than this.
Criminal Justice and Courts Bill
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, most of what needs to be said on this amendment has already been said and said eloquently by my noble and learned friend Lord Lloyd of Berwick, who has championed the cause of this desperately unfortunate cohort of prisoners for some time past.
I have added my name to the amendment, however, and speak as one of five Members of this House sitting in an appellate capacity in May 2009 in the case of James, Wells and Lee before those prisoners took their case to Strasbourg. Although in this House we felt obliged to dismiss their appeals, all of us were fiercely critical of the way in which the IPP regime had been introduced in 2004 by the 2003 Act. I observed that it was a most regrettable thing that the Secretary of State had been found to be, indeed had admitted by then to having been, in systemic breach of his public law duty at least for the first two or three years of the regime. That was in the period prior to the 2008 amendments, so it was in respect of the period from 4 April 2005 to 14 July 2008.
The European Court of Human Rights, as is well known, went further than we had felt able to do. In the case of those three applicants, whose tariffs were respectively two years, one year, and nine months, all having been sentenced in 2005, the European Court concluded that,
“following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses”,
their detention had been arbitrary and therefore in breach of Article 5.1 of the convention. In so holding, the Strasbourg court emphasised, at paragraphs 203 and 204 of its judgment, that those three prisoners had been sentenced during the initial phase of the regime when the sentence was mandatory, as the noble and learned Lord, Lord Lloyd, has explained, with the judges required to assume dangerousness—in their case—and leaving no room for the exercise of any judicial discretion. It is precisely that cohort of prisoners to whom our proposed amendment is directed and to whom it would apply.
In 2012, at much the same time as Strasbourg was deliberating on those cases, LASPO was enacted here, abolishing the IPP regime from 2012 for all time. Importantly for present purposes, as again the noble and learned Lord, Lord Lloyd, has explained, it introduced a means of improving the lot of those unhappy prisoners who had earlier been sentenced under it. It did this by Section 128, enabling the Secretary of State by order in effect to relax the usual criteria by which the Parole Board decides whether to direct a prisoner’s release.
It is at this stage that I want to make brief mention of a celebrated case, already touched on by the noble and learned Lord and well known to all who are ever interested or concerned in public or administrative law. I refer to the case of Padfield v Minister of Agriculture, Fisheries and Food, decided by this House nearly 50 years ago in 1968. There, as here, a discretion had been conferred by legislation on the Minister. There, as here, the Minister had declined to exercise that discretion. I do not pretend that the factual context there was remotely analogous to that here, but I believe that the following, frequently cited passage from Lord Reid’s judgment has a real relevance in the present context, too. This I quote from the report in 1968 appeal cases at page 1030:
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court”.
If one now asks, “What are the policies and objects of LASPO?”, the 2012 Act, there can surely be no doubt. Parliament was at one and the same time abolishing what by then had become recognised to be an unfair and unsustainable penal scheme, essentially providing as it had for preventive detention, and allowing the Secretary of State by order to abate or at any rate ameliorate the injustices that had arisen from the scheme and which remained from earlier years. The amendment would cut the Gordian knot with regard to the most unfairly treated group of IPP prisoners: those who must by definition have served at least three times—quite possibly, up to 20 times—the length of their tariff sentences. I say at least three times because, by definition, their tariffs were less than two years and they were sentenced before July 2008, which is now six years ago.
For my part, I urge in addition that the Secretary of State should now, at long last, exercise his Section 128 discretion in respect not only of that cohort but of others lucklessly left over from the IPP regime, for example, others sentenced in the earlier years when the court had no option but to pass indeterminate sentences. At the very least, surely the Secretary of State should now direct the Parole Board to reverse the burden of proof. At the moment, prisoners are required to prove that they would constitute no threat to the public on release. Surely that burden should now be placed on the Secretary of State for Justice.
However, for the 773 prisoners who would benefit from the amendment, we suggest that enough is enough. They should simply be freed. No doubt some will reoffend following release, but at least we shall have placed some limit on the ever-growing length of their preventive detention, and that stain will have been removed from our criminal justice system.
Lord Wigley (PC)
My Lords, this is my first contribution on the Bill; I apologise that I could not participate at Second Reading. The amendment deals with a matter about which I feel very strongly. I speak as a layman, not as a lawyer; we have heard excellent analysis from the noble and learned Lords, Lord Lloyd and Lord Brown.
At present, on figures I have received today, there are still 5,206 prisoners in the UK serving IPP sentences—sentences that were, as we have heard, abolished in 2012. Of those, 3,575 prisoners have already passed their tariff. As the noble and learned Lord, Lord Lloyd, mentioned, the Parole Board releases about 400 inmates every year at the present rate of release. That means it would take nine years to clear the backlog.
In March this year, I led a debate in your Lordships’ House calling for a rapid assessment of those serving those sentences. I argued that priority should be given to those who were originally given tariffs of two years or less. I will not repeat all the arguments today, but noble Lords may remember that in that debate, I mentioned that when the sentences were first introduced, courts had little discretion in choosing whether to impose an IPP sentence, and many were handed out for offences such as burglary and robbery. One tariff was set as low as 28 days.
I am therefore very glad to lend my support to Amendment 17. I am grateful to the noble and learned Lords, Lord Lloyd and Lord Brown, for tabling it. I warmly support the initiative. I ask the Minister whether he can sleep at night when he thinks of people who have been so long in prison—way beyond the period for which they expected to be there.
Prisons: Education and Training
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Lord Faulks
Any violence or instability in prisons is clearly to be regretted. However, the noble Lord will be aware that assaults in prisons are at their lowest level since 2008, and the number of cases of escaping or absconding has reduced by more than 85% of what it was 10 years ago. I am afraid that I cannot accept that there are problems as a result of overcrowding. At the moment, although there is no room for complacency, matters are stable in the Prison Service.
Lord Wigley (PC)
My Lords, does the Minister recall the debate last Thursday in which it was mentioned that more than 5,000 IPP prisoners are being held in prison, two-thirds of whom are beyond their tariff, and that the main reason for this is the lack of training for rehabilitation? Given that this is costing more than £200 million a year, is it not penny wise, pound foolish to cut back on courses of that sort? Can the Minister give some assurance that these prisoners can have the hope of getting rehabilitation courses?
Lord Faulks
I well remember the debate and the prominent part which the noble Lord played in it. He will also recall the response that I gave him, which was that there was a considerable, co-ordinated effort to ensure that those IPP prisoners were enabled to engage in appropriate activities which would increase the likelihood of, although not guarantee, their release after hearing before the Parole Board. That is happening, and the Prison Service is well aware of the problem.
Prisoners: Indeterminate Sentences
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Lord Wigley
To ask Her Majesty’s Government what steps they are taking to address the position of individuals serving indeterminate sentences on public protection grounds who have already passed their tariff.
Lord Wigley (PC)
My Lords, I am grateful for the opportunity to have this short debate on the plight of individuals given an indeterminate prison sentence for public protection. This form of sentence was abolished in 2012, but many remain in prison, wholly uncertain as to when they will be released.
IPP sentences were introduced by the Labour Government in the Criminal Justice Act 2003. That Act placed a duty on courts to impose an IPP sentence on offenders who were convicted of violent or sexual offences if there was a serious enough risk that the convicted person might reoffend. A minimum term, or tariff, was placed on offenders, which they had to complete before qualifying for assessment by the Parole Board. It was planned that offenders would undergo rehabilitative courses when in prison prior to their tariff date, to help them “qualify” for rehabilitation. After being released, all IPP offenders would be out on licence for life.
Within two years of the sentence coming into force in 2005, almost 3,000 people had been given an IPP sentence. The figure rose to 8,233 by 2012. Courts had little discretion in choosing whether to impose an IPP sentence, and many offenders were given such sentences after being convicted of offences such as burglary and robbery. Some of these were granted relatively short tariffs—one was set as low as 28 days. The Parole Board was given no extra resources to deal with the huge influx of IPP prisoners. Consequently, there were never enough places on relevant courses, so that the majority of those serving IPP sentences were kept in prison well past their tariff. Many are still there, with no immediate prospect of release.
In January this year, there were 5,335 prisoners serving IPPs in our prisons, two-thirds of whom had passed their tariff. As the Parole Board currently releases some 400 of these inmates every year, at the present rate it will take nine years to clear the backlog. David Blunkett, who was Home Secretary when IPPs were introduced, recently admitted that the Government had “got the implementation wrong”. They certainly had.
Parliament reacted to these difficulties through the Criminal Justice and Immigration Act 2008, which granted courts more discretion in determining whether to impose an IPP sentences on offenders, and provided that such sentences would be used only if the expected tariff was longer than two years. According to the Howard League for Penal Reform, these changes increase the average length for tariffs but reduce the rate of new IPP sentences by a third, yet the number of prisoners who were released remained very low.
In 2012 the then Justice Secretary, Kenneth Clarke, abolished the IPP sentence entirely and replaced it with a two-strikes life sentence system. In spite of a number of attempts in both Chambers to get the abolition applied retrospectively, the Government have, regrettably, steadfastly refused to do so. Today, there are still more than 3,500 offenders languishing in prison past their tariff date, serving a sentence that no longer exists on account of crimes which they may or may not commit in future. This is surely absurd. Had these individuals been convicted after December 2012 and, likewise, if they had been sentenced prior to April 2005—when Section 225 of the 2003 Act became applicable—they would not be in this situation.
The situation is particularly stark for those offenders who were initially given a short tariff. At the end of last December, there were 982 IPP offenders in our prisons who had been given tariffs of two years or less. That represented 18% of all prisoners serving IPP sentences. Had these 982 individuals been sentenced after 2008, they would not have received IPP sentences and would have been released years ago. This is grotesque and totally unfair to the prisoners and their families. A further 2,405 had tariffs of between two and four years, representing 45% of all IPP prisoners. They have no idea how many years they will remain incarcerated. It is hardly surprising that as many as 24 people on IPP sentences have committed suicide while in custody. It is easy to understand why many people deem IPPs to be “life sentences via the back door”.
As might be expected, morale within the prison estate has taken a knock. Last year, the Howard League and the Prison Governors Association published research based on interviews with 102 senior prison governors. The majority reported that IPP sentences had a negative impact on both prisoners and prison staff. Furthermore, 92% said that IPPs resulted in decreased staff job satisfaction, since these prisoners were more likely to be disruptive. Discipline problems inevitably increased, particularly among those sentenced prior to 2008 with short tariffs who see others, sentenced for similar crimes after 2008, come and go while they still languish in their cells. One prison governor said that,
“invariably they could see no chance of release as they struggled to access appropriate courses ... This led to anxiety, resentment and discipline problems”.
Far from being rehabilitated, some prisoners can become more difficult as time goes by, especially if left to feel that they have nothing to lose and nothing to aim for. Prison governors also said that the additional demands arising from IPP prisoners had a detrimental impact on courses for other prisoners. The needs of individuals serving life sentences were particularly neglected.
The Government must surely find an alternative way of addressing these prisoners’ risks. Quite apart from concerns for justice, keeping inmates incarcerated beyond their tariff is a false economy. Every prison place apparently costs some £40,000 a year, so IPPs are costing more than £200 million a year in total. Furthermore, following the judgment of the European Court of Human Rights in the James, Wells and Lee v United Kingdom case, which was in favour of the plaintiffs, it is highly likely that more individuals will take the Government to court to gain compensation. In 2012, the European Court of Human Rights unanimously determined that detaining individuals serving IPPs beyond their tariff without progressing those individuals’ rehabilitation was “arbitrary and unlawful”. The Government’s attempt to appeal the decision was rejected in February 2013.
Under the LASPO Act 2012, the Justice Secretary has the power to put an order to Parliament which would require the Parole Board to direct the release of all inmates serving IPPs, provided that certain conditions are met. The Justice Secretary has indicated that he is not minded to do this, as he argues that it is not appropriate to modify sentences which were passed by the courts. I suggest to the Justice Secretary that he is ignoring the fact that, prior to 2008, the courts felt they had little option but to impose IPPs on someone convicted of any one of 153 different offences. I am sure that many sentencers would support such a move and, besides, the Justice Secretary must accept that he was given these powers for a reason. Indeed, I suggest that the Justice Secretary is acting unreasonably in applying a blanket refusal to use discretionary powers that Parliament has specifically given him and given him for a purpose. Parliament expected the Justice Secretary to use discretion; in refusing to do so, he is surely flouting the will of Parliament.
Consideration should also be given to converting the sentences of those given a tariff of two years or less to a determinate sentence of twice their tariff, which would mean—other things being equal—that many prisoners would be released immediately. The Government must also commit to increasing the funding of the Parole Board so that it can cope with the extra demands being placed on it, as well as providing the necessary resources for rehabilitation courses.
The introduction of IPPs in 2005 was, in no small part, the action of a Government trying to show that they were tough on crime even if the sentence itself was totally disproportionate to the crime committed. Now, this Government seem to be intent on giving out the same message and, incredibly, we learnt earlier this week that the Justice Secretary has tried to limit the number of books that inmates can read. Enough is enough. The Government must put justice and common sense ahead of politics, bring an early closure to the plight of those so unreasonably detained in prison, and remove what is increasingly seen as a disgraceful blot on the good name of British justice.
Anti-social Behaviour, Crime and Policing Bill
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Lord Wigley (PC)
My Lords, I, too, support Amendment 94E, moved by the noble Lord, Lord Pannick, which would correct a provision in the Bill which could make it almost impossible for those who have suffered miscarriages of justice to gain compensation for their time spent in prison.
At present, the test for compensation in cases where a miscarriage of justice has taken place is that a jury could not, beyond reasonable doubt, find them guilty of the crime, perhaps because of new evidence that has come to light or evidence that has been disproven. Looking to the case law which forms the basis of the current test, Lord Bingham argued in the Mullen case that, based on Article 14.6 of the International Covenant on Civil and Political Rights, a miscarriage of justice occurs not only when a person can be proven to be innocent but in cases where it is possible to say that an individual has been wrongly convicted because of,
“failures of the trial process”.
The Supreme Court adopted this view in the Adams case. The Divisional Court stipulated in the Ali case that an individual should be required to prove,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
If Clause 161 of the Bill before us today is passed unamended, it would return the law to a narrower definition of miscarriages of justice, such that the individual has to prove that,
“the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
This places a heavier burden of proof on the individual, as he or she must prove their innocence of a crime years or perhaps even decades after that crime has been committed and when they have already served a portion of their sentence. This would result in individuals who have already suffered wrong at the hands of our justice system being denied access to compensation for that wrong. In practical terms, it would be virtually impossible for these individuals to prove their innocence since they are in effect being asked to prove a negative: that they did not commit acts that would have made them guilty of the offence.
Justice has pointed out that the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward would not have satisfied the innocence test proposed by the Government. It is also worth remembering that the rule of thumb when awarding compensation in these cases is that the individual should expect to receive roughly the same amount as they would have missed out on in lost earnings for the time they spent in prison. The Bill would impoverish these wronged individuals and that, surely, cannot be right. Amendment 94E, which I am glad to support, would instead reinsert the test currently used by courts in determining whether a miscarriage of justice has occurred; that is, that the evidence against the person at trial is so undermined that no conviction could possibly be based on it.
I remind noble Lords that the presumption of innocence is a long-standing principle of our criminal justice system. As Liberty has said, it is a key safeguard. For in cases where the state prosecution cannot provide evidence that proves beyond reasonable doubt that a defendant is guilty, a court cannot convict that individual of an offence. Liberty says:
“The criminal law, through the presumption of innocence, accepts that sometimes individuals will not be convicted even though it is not 100% certain that they were innocent: it is guilt that must be proven”.
If the Government introduce this highly significant change to our criminal justice system, it will undermine this fundamental principle, since individuals would never have had to prove their innocence in the original criminal trial. I urge noble Lords on all sides of the House to support Amendment 94E and to signal to the Government that they cannot introduce such a reckless change.
Lord Phillips of Worth Matravers (CB)
My Lords, it will occasion no surprise that I support this amendment, nor perhaps need I declare my obvious interest as the author, in my judicial capacity, of the definition of miscarriage of justice that it supports.
The amendment has been recommended by the Joint Committee on Human Rights, which has advanced two reasons for supporting it. The first and lesser reason is that, in determining whether there has been a miscarriage of justice as defined in the amendment, the Secretary of State, or the courts in reviewing her decision, will not have to infringe the presumption of innocence that is required by Article 6.2 of the European Convention on Human Rights. This is not true of the definition proposed in the Bill. The second and more compelling reason is that the definition in this amendment better meets the requirements of justice than the definition proposed in the Bill.
I will deal first with the effect of Article 6.2 of the human rights convention. Article 6 provides for the right to a fair trial. Article 6.2 provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
On the face of it, this is no more than a rule of criminal procedure that has long been part of our law: the burden of proving guilt is on the prosecution. Indeed, the Strasbourg jurisprudence recognises that the primary effect of Article 6.2 is to impose this procedural rule. But the Strasbourg court has identified what it has described as “a second aspect” of Article 6.2, which applies to protect individuals after they have been acquitted in a criminal trial. Shortly summarised, the second aspect prohibits public officials and authorities, including courts, from suggesting that a person who has been acquitted of a criminal charge is, or may be, guilty none the less.