Third Reading

Crime and Courts Bill [HL] – in the House of Lords at 3:06 pm on 18th December 2012.

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Amendment 1

Moved by Lord Avebury

1: After Clause 20, insert the following new Clause-

"Immigration appeals: asylum and humanitarian protection

(1) Section 83 of the Nationality, Immigration and Asylum Act 2002 is amended as follows.

(2) In subsection (1)(b) omit the words "Kingdom" to the end and insert ", and-

(a) the leave has been granted for a period exceeding one year (or periods exceeding one year in aggregate); or

(b) the person is under 18 years of age at the time of the grant of leave; or

(c) there are reasonable grounds to believe that the person is a victim of human trafficking."

Photo of Lord Avebury Lord Avebury Liberal Democrat 3:07 pm, 18th December 2012

My Lords, this amendment provides that an appeal against a refusal of asylum by someone who has been granted leave to enter for a year or less can be exercised by a child or trafficked person. On Report a similar amendment to remove restriction in all cases was considered. The Minister complained that this was too wide, because it would have afforded a right of appeal to people other than children and trafficked persons. I have therefore confined this amendment to those classes of persons in the hope that a more restricted version of the amendment may prove acceptable to the Government.

Children and trafficked persons who are refugees are entitled to recognition as such, and to enjoy the rights and entitlements of refugees, including for example higher education at home student rates, a travel document and family reunion, and obviously to the security that that recognition brings. The law should not take them to the brink of removal before they can assert their rights to recognition. The Minister suggested that the delay imposed on these children's applications for asylum was not unreasonable because they were close to adulthood. Actually, time and again the courts have ruled that adulthood is not a moment of sudden transition at which the risks to which children are exposed suddenly disappear. Lord Justice Maurice Kay summarised the authority in a recent case, KA (Afghanistan), when he stated that,

"it does not matter that the appellants are now over 18 because 'there is no temporal bright line across which the risks to and the needs of the child suddenly disappear'. The line of authority which is said to support this analysis includes"- and here the judge rattled off a list which I will not bore your Lordships by repeating.

My noble friend kindly wrote to me on 20 November, saying that the amendment would lead to costly multiple appeals. This is, in fact, not the case. Those who appeal and are recognised as refugees will obviously not need a further appeal. The only persons who would have more than one appeal are those whose applications are rejected, who then lose the appeal against refusal, and who the Home Office decides to remove. They would then have a right of appeal against removal, as would anyone else facing that decision. The appeal would, no doubt, rest to a large extent on evidence from the earlier appeal on both sides, and therefore the costs are not likely to be large.

I am not sure where my noble friend gets his idea of multiple fruitless appeals from, and his suggestion that my original amendment would have resulted in significant cost to the taxpayer was not accurate. This amendment is even less open to that criticism, and the limited costs that it entails must be set against the failure to respect the rights of refugees who are denied protection for a year. I ask my noble friend whether the Government have sought the views of the UNHCR on this matter and, if not, whether they will do so and circulate the answer in time for those views to be considered when the Bill is debated in another place.

When the Government ratified the Council of Europe Convention on Action against Trafficking in Human Beings, the Immigration Law Practitioners' Association tried to persuade them to grant trafficked persons leave to remain for a year and a day in order to avoid this problem. The request was refused, and if the Home Office was concerned that it would have meant a handful of people aged 16 years and nine months getting three months' more leave than they would otherwise have done, the amendment offers an alternative, whereby the Home Office can grant the period of leave that it chooses but an appeal against refusal of asylum can still take place.

I turn to the second amendment in the group. There were some misunderstandings in the debate on this proposed new clause on Report, and it is in the hope of clearing them up that I ask your Lordships to spend a moment or two once again considering an amendment similar to one I moved previously, which recognises the true circumstances in which the clause is intended to be used. The Minister said that,

"it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem".-[Hansard, 12/12/12; col. 1103.]

He was speculating, but what he described is contrary to stated Home Office policy. I am reliably informed that this policy is to wait until a person is outside the country to deprive them of leave to remain. This has been repeatedly confirmed in meetings with the Immigration Law Practitioners' Association and, indeed, at the semi-public ILPA annual general meeting, which was attended by some 100 members on 27 November 2010. On that occasion, the statement was made by Tony Dalton MBE, then assistant director and chief case worker at the nationality and European casework department of the UKBA. ILPA tells me that it is not aware of any case in which some intervening act has prompted the deprivation. That is not to say that it has never happened, but it is certainly not the norm. In many cases, the deprivation notice is served immediately after the person has left the country. There is simply no time for new evidence to come to light or for the person to have done anything that would make him subject to the notice.

ILPA dealt in detail with this in its evidence to the Joint Committee on Human Rights inquiry into extradition policy in January 2011. Subsequent to that, there was the decision of Mr Justice Mitting, sitting in the Special Immigration Appeals Commission in the case of L1, where the matter at stake was deprivation of citizenship. In paragraph 12(i) of his ruling, the judge said:

"The Secretary of State's decision to deprive the Appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train".

The Minister may also have unintentionally misled the House when he said in reply to the noble and learned Lord, Lord Woolf-also in column 1103-that exclusion while a person is out of the country has been part of the immigration process for a substantial period. It was indeed at one time, until it was declared unlawful on 16 January 2012 as a matter of statutory construction in the case of MK, as discussed in the Immigration Law Practitioners' Association's evidence on extradition to the Joint Committee on Human Rights. If it is done at the moment then the law is being broken.

My noble friend made a reference to "high harm individuals". Whether or not such persons are "high harm" is the very matter that will be considered in the proceedings. Those who have been tried and convicted of a serious criminal offence are likely to be in prison; the others, according to the principles of our law, are innocent until proven guilty. In the MK case, the courts in Italy to which Mr MK had been extradited under a European arrest warrant had released him, and he was facing return to Tunisia, a country where the UK courts handling the extradition had agreed that he would be at risk of torture. It was at that moment that the UK moved to deprive him of his citizenship.

My noble friend the Minister suggested that it is not reasonable to allow persons to return to the UK to challenge the decision to take away their leave. That assumes that the decision is correct. It also assumes that it is possible to pursue a challenge from overseas. As was pointed out in the debate, this is very far from straightforward. My noble friend, Lord Maclennan, described the "very grave disadvantage" it poses to an appellant. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, the person may be stateless. Her question as to how an earth such a person would appeal from overseas was well put.

The noble Baroness, Lady Smith of Basildon, asked about the criteria for cancelling a person's leave when they are out of the country. ILPA states that it is not aware of any criteria additional to those for cancelling any person's leave. The length of time the person has been out of the country, the reason they are out of the country, and their conduct while out of the country are not the subject of specific criteria or scrutiny. If there are any, perhaps my noble friend will tell us about them when he comes to reply. It is indeed the case, as the noble Baroness, Lady Smith of Basildon, put it, that the Home Office "lies in wait" for a person to leave the country.

I agree with the noble Lord, Lord Pannick, and my noble friend, Lord Lester, who said on Report that it is arbitrary and irrational that whether a person has an in-country right of appeal depends on whether they are in the UK at the time when the case is certified. The Minister replied that it would be "nonsensical" to allow a person back into the UK to exercise a right of appeal. That is tantamount to saying that the rule of law itself is nonsensical. I beg to move.

Photo of Lord Elton Lord Elton Conservative

My Lords, forgive me. I want to make, not a pre-emptive remark, but an introductory one. I apologise to your Lordships for intruding on your discussions on this particular amendment, but I am very surprised by the form and volume of the Marshalled List at Third Reading. Having been here for 39 years I do not recall there being anything like this in the past. I draw your Lordships' attention to paragraph 8.142 of the Companion, and suggest that this is a matter to be considered by the Procedure Committee before we continue in the next Session.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I understand that Amendment 5, to which I wish I speak, arises in particular out of concern that the House may unintentionally have been misled on Report. I support the noble Lord, Lord Avebury, on Amendment 5. I fully understand the argument deployed by the Government on Report-it would be absurd to allow a person regarded as dangerous back into the country in order to pursue an appeal. My concern is that legal practitioners understand the policy of the Home Office to be to wait until a person with leave to remain travels abroad before then making the decision to curtail their leave, with the express intention of depriving them of the right of appeal from within the United Kingdom. That seems to be difficult to reconcile with the rule of law. I ask the Minister in his response to Amendment 5 at least to give the House an assurance that decisions to curtail leave to remain will not be deliberately delayed until a person travels abroad, with the intention of depriving them of a right of appeal from within this country.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Adoption Legislation Committee

My Lords, I declare an interest as co-chair of the human trafficking parliamentary group. If there are reasonable grounds for someone being understood to be a victim of trafficking, it would be extraordinarily unjust and contrary both to the Council of Europe's convention and the directive of the European Union, to both of which the Government are signatories, to treat that victim in the way that it is possible that he or she would be treated if the amendment were not passed.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I would be most grateful if the Minister could clarify the position, raised by the noble Lord, Lord Avebury, regarding this sudden moment of transition at the age of 18. I would appreciate him reassuring the House that the Government do not consider there to be single cut-off immediately after the child moves past the age of 18 but that there is humane consideration of a young person's need for a transition into adulthood. With young people who have been traumatised-for instance, those who have been trafficked-one sees that their development may well be delayed and one has to allow for that. In the Children (Leaving Care) Act, we see special consideration being given to their needs, because of their early trauma, up to the age of 21 and, in some cases, until the age of 25. We need to pay attention to the developmental needs of children and to recognise that some children, particularly those who have been traumatised in their early life, need more care and attention as they make that transition into adulthood.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

My Lords, I see that the Minister is eager to respond, which I can well understand. I do not intend to detain the House; the noble Lords, Lord Avebury and Lord Pannick, the noble Earl, Lord Listowel, and the noble and learned Baroness, Lady Butler-Sloss, have made some powerful points. There were some important questions there, particularly regarding the policy of the Home Office, to which it would be helpful if the Minister is able to respond.

On the point made by the noble Lord, Lord Elton, an unusually large number of amendments are before your Lordships' House today for a Third Reading. I do not recall seeing as many in my time in this House or in the other place. I can see Ministers nodding in agreement. Perhaps they could consider whether the Bill's needing considerable discussion has something to do with its inadequacy when it was first presented to your Lordships' House. Noble Lords have made great efforts, particularly where they have supported the Government's policies in principle, to look at the detail. However, in many cases-and perhaps understandably given that three completely new sections of the Bill were not envisaged when the timetable was set, and given the changes of Ministers and changes of policy that we have seen-it has been very difficult.

I appreciate that time is limited today, and I do take issue with the scheduling. We have three important debates with a large number of speakers tonight, and it will be difficult to complete the business within the rules of the Companion, to which the noble Lord, Lord Elton, was right to draw the House's attention, so I do not wish to repeat the comments that have been made. However, there are some important questions here.

I raised some questions on Report which came back to the issue of public safety. As the noble Lord, Lord Pannick, pointed out, people understand, and I think that the House understands, why if somebody is a danger to the public they should not have leave to remain. The question is about the process and why somebody becomes a danger to the public when they leave the country, as the noble Lord said, but not when they are in the country. There is an issue of process here and it would be helpful if the Minister were able to address those points. However, noble Lords who have already spoken, including the noble Lord, Lord Avebury, have raised and done justice to the issues, so I do not intent to repeat them, but I would be very interested in the Minister's response.

Photo of Lord Elton Lord Elton Conservative

Before the noble Baroness sits down, I should say that the Clerk of the Parliaments has kindly pointed out that I should have been looking at paragraph 8.143, not 8.142; therefore what we are doing is in order, but is far in advance of anything I remember in my earlier years. However, things do move on.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

I readily concede the noble Lord's encyclopaedic knowledge of the Companion, but I think the reasons why the amendments have been brought forward today are very good. However, it is unusual, and perhaps it would have been better to have had longer discussions about some of these issues, and to have had responses that satisfied the House earlier in the Bill's proceedings.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, I am sorry if my responses on Report failed to satisfy the House; I hope that I can satisfy it today. I understand that the scheduling of today's business was agreed through the usual channels, and nobody has a more vested interest in the speedy resolution of business than I do, as I believe I will be the last speaker on today's business.

My noble friend quite rightly pointed out that his amendments are similar to those which he tabled on Report. I explained then that our principal reasons for resisting the first amendment were the detrimental impact on the statutory appeals framework, and the increased number of appeals and costs that would result. Although this amendment is framed more tightly and specifically, the same detrimental impact will result from it. While I recognise the intention of the amendment is to reduce the delay in bringing an appeal for children and trafficked persons, the consequences for the appeals framework are not justified.

Only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend Lord Avebury. It affects only those who are older than 16 and a half when refused asylum but granted some other form of leave. These children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. As I said last time, this delay is not unreasonable.

I say to the noble Earl, Lord Listowel, that the age of 18 is a statutory boundary between childhood and adulthood, and Governments have to live within the constraints of that. It is important to recognise that in all cases, before a child or trafficked person is removed from the UK, they will be entitled to a right of appeal. That is part of the process.

The Government's policy ensures that individuals do not have multiple appeal rights over a brief period of time, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment would undermine this key principle of the Secretary of State's asylum appeals framework.

I turn now to Amendment 5, which my noble friend has also brought back. As I set out previously, the individuals we are seeking to capture in this clause are those excluded by the Secretary of State-that is to say, they are individuals who pose the highest threat to the public, be it for engagement in terrorism, serious criminality or unacceptable behaviour. It is therefore only right that an appeal against the cancellation of leave decision that accompanied the Secretary of State's decision to exclude takes place from outside of the United Kingdom.

To be absolutely clear-I do not want noble Lords to feel that I am seeking to mislead them in any way-and as has been raised in previous debates, there is no policy of waiting for an individual to leave the United Kingdom before excluding them. Indeed, a series of deportation orders in cases in respect of national security activity are ongoing at the moment. However, in many of these cases we are talking about a situation where an individual leaves the United Kingdom for a period of time to meet with like-minded individuals and potentially to acquire new skills which, if utilised back in the United Kingdom, can pose a significant and serious threat to the population as a whole. That is why in such cases, having seen the intent of their activities while abroad, the Secretary of State takes the decision to exclude on the grounds of non-conduciveness. It would be a highly risky strategy to allow such individuals simply to come back to the United Kingdom and to exercise a right of appeal. It would also undermine a crucial disruption tool used for the protection of the general public.

On the last occasion I tried to put all this in context because there has been no substantial change in this policy as Governments have changed. I should like to reassure the House that exclusion is a power that is used sparingly and is reserved for the highest harm cases where there is reliable and credible evidence to support the decision. As I indicated on Report, it applies in the context of national security, organised criminality, unacceptable behaviour, foreign policy and war crimes cases. Since 2005 it has been used 426 times. Out of those cases, only 30 have simultaneously had leave cancelled. We should be mindful of the small number of cases we are dealing with here, as well as the potential harm that these individuals may cause the United Kingdom.

I am also aware of the concerns raised about the disadvantage caused to an individual of providing in such cases an out-of-country-only right of appeal. I do not believe that the individual is put at a disadvantage by doing so as the intention in every case is to notify the individual of the decision and the appeal rights that accompany that decision. It is for the individual to seek legal representation of their choosing, and indeed legal aid is available for cases that reach the Special Immigration Appeals Commission. Given the type of terrorist activity we are discussing here, it is likely that many of these cases will reach that forum.

My noble friend Lord Avebury asked me about the criteria for exclusion or cancellation of leave. They are,

"where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good".

In fact, there is no set definition of the phrase "conducive to the public good", but I think that noble Lords will know it when they see it.

I have sought to answer all the questions put to me, and in the light of my remarks, I would ask my noble friend to withdraw his amendment.

Photo of Lord Avebury Lord Avebury Liberal Democrat 3:30 pm, 18th December 2012

My Lords, I am most grateful for the renewed support of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Earl, Lord Listowel, and the noble Baroness, Lady Smith of Basildon. What they have said demonstrates that there is still serious concern across the Floor of the House with regard to both these amendments, particularly in the case of the noble Earl, Lord Listowel, on the rights of the child, which are being jeopardised by the current system. There is a serious question as to whether the system we have now is compatible with our signature to the UN Convention on the Rights of the Child. However, both that and concerns about the right of appeal only from abroad may have to wait for further consideration in another place, where I hope that these issues will be picked up. I honestly do not think that my noble friend, although he has tried hard, has given us satisfactory answers to many of the points that have been raised. I mention in particular whether the Home Office has a policy of lying in wait. I cited the detailed evidence which has been-

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

I am sorry but I did make it patently clear that there is no policy of waiting for people to leave the country before taking these proceedings. That is a matter of fact. I did answer the question.

Photo of Lord Avebury Lord Avebury Liberal Democrat

I know that my noble friend said that, but he did not respond to the point I made about the evidence which has been provided for us by the Immigration Law Practitioners' Association. It says that in many cases the notice is served the day after a person has left the country and that the policy was acknowledged by a senior UKBA official when the matter was addressed at the ILPA AGM in front of 100 people in November 2010. My noble friend did not deny that that evidence existed, nor did he attempt to refute it. If he had said that in the cases where a person's presence was deemed to be "non-conducive to the public good" the Home Office would not wait until somebody went abroad for a short period, I would have been far happier. The case that he described-where someone is known to be departing from the United Kingdom with the intention of plotting with like-minded individuals abroad to commit or plan further offences against our laws-is, again, hypothetical, but the existence of the suspicions could have enabled the Secretary of State to serve that person with a notice before he left the country. Therefore, there was an element of premeditation in the way that the Secretary of State exercised her powers in the particular case that my noble friend described.

I do not think that we are going to get any further with this matter this afternoon. I shall have to leave it for our colleagues in another place to renew the discussions on both these amendments, as I hope they will. In the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Baroness Meacher

2: After Clause 25, insert the following new Clause-

"Enforcement services

(1) The Legal Services Act 2007 is amended as follows.

(2) After section 125 insert-

"125A Extension of Part 6 to enforcement services

(1) For the purposes of this Part (and sections 1, 21 and 27 as they apply in relation to this Part)-

(a) the Bailiffs and Enforcement Agents Council is to be treated as an approved regulator;

(b) enforcement services are to be treated as a reserved legal activity;

(c) a person authorised under sections 63 and 64 of the Tribunals Courts and Enforcement Act services is to be treated as an authorised person in relation to that activity;

(d) the Bailiffs and Enforcement Agents Council is to be treated as a relevant authorising body in relation to such a person, and

(e) regulations under the Tribunals Courts and Enforcement Act 2007 and the National Standards for Enforcement Agents are to be treated as regulatory arrangements of the Bailiffs and Enforcement Agents Council as an approved regulator.

(2) For the purposes of sections 112 and 145 (as extended by this section), a person authorised under sections 63 and 64 of the Tribunals Courts and Enforcement Act is to be treated as a "relevant authorised person" in relation to the Regulator.""

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, Amendment 2 seeks to provide some protection for vulnerable people who have suffered unacceptably at the hands of a bailiff. The amendment provides complainants with access to the Legal Ombudsman if the internal complaints processes fail to resolve a dispute. I should make it clear that the Legal Ombudsman is able and willing to take on this role, which would be quite compatible with other work that the ombudsman is already doing or is shortly to take on.

On Report, I moved a much more ambitious amendment that would have introduced independent regulation of bailiffs. This amendment is just one small element of such a system, but a very important one. In the health service, which I know, the independent health ombudsman is crucial in ensuring that lessons are learnt from complaints and that the quality of service improves. This is what an independent appeals process is all about-improving the quality of service and stamping out bad practice. Nowhere is this more important than in the debt collection field.

As we know, the job of a bailiff is intensely difficult. Extracting money or goods from a person who, for whatever reason, has fallen into debt is almost inevitably confrontational. Very many of those people will be vulnerable, and that is really my point. They may be disabled or mentally ill, or they may be mothers with young children or elderly people with failing memories or full-scale dementia.

We also know that hundreds of thousands of households could be confronted by bailiffs for the very first time when further cuts and caps are applied to the welfare benefits system at the end of March next year. Households affected by the housing benefit cap, the overall benefits cap and a council tax of 20%, which will be new to them, and who cannot move into smaller accommodation or into a cheaper area may find their income after paying rent very substantially lower than anything that they are used to. If a family cares for a relative nearby or their property has been adapted for a disabled child, it will be impractical to move.

Your Lordships know very well the problems that families will face next year. Many will be unable to eat and to keep warm. I make this point only because these families, with their inevitable debts, will be in a completely new situation. They will not have confronted this situation before, and it will be a deeply shocking experience. The bailiffs who come to their doors demanding payment will inevitably include those who are by nature aggressive and who may have limited communication skills and little, if any, empathy for vulnerable people.

Citizens Advice says that it dealt with 24,700 problems relating to private bailiffs last year, including forcing entry to a home-knocking the door down-seizure of exempt goods that they should not have seized, harassment and intimidation. These numbers will soar next year. To make matters worse, there are particular reasons why bailiffs are more likely to make mistakes than other operatives or professions, including the archaic legislation and case law, going back to the Middle Ages, and the plethora of different legislation applying to different debts. Having made a mistake, bailiffs are much more likely to become aggressive.

The case for oversight of the bailiff industry and for a grievance procedure delivered independently from bailiff firms has been accepted by previous Conservative and Labour Governments. Only an independent complaints ombudsman can deliver redress in a way that is consistent with principles of administrative justice, award financial restitution where appropriate, publish data on good and bad practice and, most importantly, make recommendations for improvements.

The coalition agreement identified that there is a serious problem with bailiffs acting aggressively and that vulnerable debtors need protection from that. I thank the Minister, the noble Lord, Lord McNally, for a helpful and, in some ways, positive discussion yesterday and for his follow-up letter. In that letter-I hope he will not mind my quoting it-he said:

"We recognise that this is a widespread problem. We understand that the actions taken by many bailiffs can be, at best, deliberately belligerent and, at worst, aggressive or threatening".

Furthermore, the Minister agrees with us that the people affected,

"will often be the most vulnerable in society".

He adds:

"We cannot allow them to be subject to bullying behaviour by bailiffs and are committed to taking action to prevent this".

The noble Lord, Lord McNally, also refers to the despicable behaviour that some debtors have had to endure. I myself could not express more strongly the reasons for this amendment.

When we have independent regulators for most, if not all, the professions where practitioners are highly educated, talented and carefully selected to ensure that their personalities are just as they should be for the job, how can any Government reject the proposal for part of a regulatory function-an independent appeal process-for bailiffs? The Minister explained that they need to take more time to decide how best to protect vulnerable people. However, I do not believe that the decision, in principle, that an independent appeals process is justified requires any more time. The proposal has been considered for more than 20 years. The Government themselves have spent seven months looking at these issues and want to pass this legislation while they continue deliberating on how and to what extent they will protect vulnerable people from abuse by bailiffs. The Government should have clarified the minimalist system that I believe they plan to put in place before bringing forward this legislation. I do not think that it is acceptable to bring forward the legislation before we know what the Government plan to do.

I now understand that an independent appeals process could be introduced by regulations, but there is no assurance at all that the Government will introduce an independent appeals process. Without this amendment, nothing in this legislation will ensure that that is done. I regard this as the absolute minimum required to begin a process of improving the quality of service of bailiffs. If the Minister feels unable to agree the detail of this amendment but will make a commitment on the Floor of the House that an independent appeals process will be introduced to cover bailiffs, I shall be content to withdraw the amendment. However, if the Government can tell us only that they will do their best, then I believe we owe it to the many harassed, abused and terrified vulnerable people to seek to pass this amendment. I await the Minister's reply and beg to move.

Photo of Lord Lucas Lord Lucas Conservative 3:45 pm, 18th December 2012

My Lords, I should declare an interest as chair of the Enforcement Law Reform Group. As such, I count many bailiffs among my acquaintances-and do not know one who would not support this amendment. Everybody in the bailiff industry, from those who have spent a lifetime in it to the most vocal advocates of the poor, wants regulation and a complaints system. This has been an active subject in government since 1980. We have had several times when action has been promised and no times when action has resulted. It is high time that the Government did something. The previous Minister in charge of this promised that he would do something, and it was delayed and delayed. We have a new Minister in charge and again we are promised that something will happen, but nothing substantial has come forward. It is time we had action. It is no bad thing that we in this House should pass an amendment signalling just how seriously we regard this constant delay. It is very important that whatever we do about regulation, we have an appeals process: some way in which bad behaviour can be brought to book and in which complaints can be heard.

There are pros and cons of doing it in any particular direction. I have had very good experiences with ombudsmen-not in this area, but others; it is a system that works well. But it is not good enough to have no appeals process. Having done bailiff regulation in whatever way the Government propose to do it, we cannot even think of not having a serious system of appeal and for dealing with bad practice. Without it, the bad practice will not disappear. The serious members of the bailiff profession very much want it to, but they need the Government's help. The Government have set up a system of remuneration for bailiffs which invites bad practice, because it makes it uncommercial and uncompetitive to behave according to the rules. Under those circumstances one should not be surprised that things get pushed a bit. Proposals and studies on the proper system of remuneration for bailiffs have been around for a long time; we have not yet seen them implemented. The Government ought to make progress, and I should be delighted if the Minister would give a firm promise on this to prevent the noble Baroness pressing her amendment. However, if she does press it, and if I am unhappy with what the Minister says, I shall be in the Lobby with her.

Photo of Lord Kirkwood of Kirkhope Lord Kirkwood of Kirkhope Chair, Information Committee (Lords)

I follow my noble friend Lord Lucas and concur with what he and the noble Baroness, Lady Meacher, said. The House owes her a debt of gratitude for pursuing this matter to Third Reading. After these proceedings the House has many important duties and discussions, so I want to be brief. I concur with everything said by the noble Baroness, Lady Meacher. However, unusually for me given the context of the discussion, I want to ask my noble friend on the Front Bench a party-political question. It is a very simple one. The governing coalition agreement makes specific reference to more protection against aggressive bailiffs; that is what we as a coalition Government in 2010 undertook to do. Can the Minister assure me that in 2015, when the coalition agreement runs its course, he will be able to provide me with an answer to the question, "What additional protection against aggressive bailiffs have we as a junior coalition partner been able to provide?"? That is a very important question and I am certain that it will be asked.

That is the first point I want to make. The second point is that time is now running out; I know this as well as does the noble Baroness, Lady Meacher. April 2013 is not a cliff edge that will suddenly cause an explosion of debt-enforcement proceedings. However, that date marks a significant change to the risks faced by low-income households against a very difficult financial background, which we all know about. It is not safe to leave in place the current inadequate proceedings-the framework within which debt enforcement is conducted-against the background of what we all hope will be a short-term period of financial distress. These low-income families have nowhere else to go. They are, by definition, the most vulnerable people in the country. Sometimes their heritable property and homes are at stake, so the stakes for them could not be higher. It is therefore essential that we do everything in our power to make sure that the rules are observed.

No one is suggesting that debt enforcement cannot be pursued. That would be quite wrong. There is no party politics in this, and I am not making a party-political complaint, but the department has been sitting on this for far too long. Speaking for myself, if the Minister is not able to give the noble Baroness, Lady Meacher, her amendment as stated, I want to know how long it will take for him to bring about the change that the amendment requests. I know the Minister very well, and I know that he takes these issues seriously. I know that he has strength as a political operator and a huge amount of experience. I do not believe that it is impossible for someone of his stature to go back to the department and say, "You have a maximum of 12 months to sort this out, otherwise my reputation as a Minister will come under attack". That is all he needs to do because if I was his senior adviser on this matter and he raised an eyebrow and uttered sentences of that kind, I would not think twice about trying to sort the problem. Time is not on our side.

People get touched by debt enforcement proceedings after they have had personal experience. I know this because when I was fledgling provincial solicitor I used to instruct sheriff officers who were subject to the control of the sheriff. Any sheriff officer who got on the wrong side of the rules in front of Sheriff James Patterson in Jedburgh Court got a dose of Jedburgh justice himself. As a solicitor for organisations such as the then South of Scotland Electricity Board, I found that the operation of debt enforcement was perfectly controlled but deeply affecting. I remember as a young solicitor understanding the effects of properly enforced debt obligations on families in a small rural community. They made a real mark on me. My experience since is that anybody who is touched by any element of debt-enforcement proceedings is traumatised in a way that few other occurrences-domestic, personal or otherwise-produce, so we have a double obligation to try to get these things right.

I am about to retire as a lay member of the General Medical Council. For the past four years, I have had an engaging and enjoyable time watching the beneficial effects of a sensible, light-touch regulation system with licences, appeals and complaints that put a framework around everything that the professionals in the system do. I am absolutely persuaded that it is in the interests of bailiffs, debtors, creditors, courts and everyone else to have a playing field on which the rules are absolutely clear. The essential elements of that are an appeal system that people understand, a competent complaints service and licences that can be withdrawn if people flagrantly abuse the rules. It works in medicine and in other walks of life-it will work in debt-enforcement proceedings.

In conclusion, I say to my noble friend that, as coalition partners, we not only have to provide an answer before 2015 to the urgent political question of providing more protection but, more importantly, we have to get the system in place before universal credit compounds all the benefit problems, council tax debts and other issues to which the noble Baroness, Lady Meacher, referred. Time is running out. We must get this done. I know the Minister understands the importance of this, so the key thing for me is the timeline. If the Minister does not in his response put his own imprimatur that he will get this done in a reasonable time, I may follow the noble Baroness into the Lobby if she decides to press this to a Division.

Photo of The Bishop of Lichfield The Bishop of Lichfield Bishop

My Lords, I too am glad to support the noble Baroness, Lady Meacher, and her amendment which seeks to establish a statutory ombudsman for complaints about bailiffs. I am glad to do so also because Wednesbury, of the famous Wednesbury rules, comes from the ancient Black Country town in my diocese where the recession and austerity have acquainted many citizens with bailiffs for the first time.

Most of us have had the infuriating experience of having our wheels clamped by a private company and of officials who then would not listen to reason. How much worse it must be to have one's personal possessions, or even one's home, taken away. It is vital that those authorised on our behalf to collect fines should be properly accountable and their behaviour regulated.

The second reason I want to support this amendment is that the citizens advice bureaux, the Zacchaeus 2000 Trust and the Money Advisory Trust are all behind it. They have been concerned about the practices of some private bailiffs for many years. As we have heard, CABs dealt with getting on for 250,000 problems to do with private bailiffs this past year. They have some heartrending examples of people being pushed into unpayable debt by bailiffs acting illegally. We must do all in our power to prevent vulnerable people being led to believe that the justice system in our country is all about the rich punishing the poor. The present system of certifying county courts fails to monitor individual bailiffs' behaviour; it is intimidating and costly for vulnerable people to bring complaints and there is no power for a court to award redress.

The Zacchaeus 2000 Trust helps 650 impoverished debtors a year in London. It is convinced that there is a relationship between debt and mental illness and between destitution and poor maternal nutrition and, consequently, babies with lifetime mental and physical illness. Zacchaeus 2000 meets bailiffs when they are enforcing council tax and fines on impoverished debtors. Of course, the courts must be supported and their penalties enforced but we do not want the ethos of the car clampers to be repeated in debt-collecting in our poorest boroughs.

The present system is widely perceived as unsatisfactory and toothless. A legal ombudsman would give debtors and the advice sector a proper remedy when bailiffs do not comply with the Wednesbury standards.

Photo of Lord Cormack Lord Cormack Conservative 4:00 pm, 18th December 2012

My Lords, I came to listen and I do not think I have ever heard more powerful, convincing pleas for a Christmas gesture from a Government. I will not repeat the justifiably flattering things my noble friend Lord Kirkwood said about my noble friend Lord McNally, but he is a man of imagination and sensitivity and I hope he will realise that, if this House exists for anything, it is to say to the Government on issues such as this, "You have not got it right". If the Government are consulting, it is for the House to say that they have to do it quickly and come back with something that will satisfy the points made by the noble Baroness, Lady Meacher. The right reverend Prelate talked about wheel clamping, an interesting and rather good analogy. But the inconvenience that we might suffer if our wheels are clamped is as nothing compared to the anguish and misery inflicted upon a destitute family.

In Lincoln, we are in the process of revealing Lincoln Castle. We have a large grant from the Heritage Lottery Fund. I am acting as chairman of the Historic Lincoln Trust. One of the things that we are going to do is restore and recreate the prison in Lincoln Castle. When people come and look at that they will see the conditions in which debtors were kept. When we read David Copperfield and about the life of Dickens himself, we think, "Good gracious, could people have been put in prison for debt?". Yes, they were and, yes, we should know about it.

Is there any equivalent today? Yes, this is perilously close to it. It visits upon people who are among the most vulnerable and often the least articulate a horror that leaves the disintegration of their lives in its wake. We are not saying that there should not be procedures for debt enforcement, or that people should not face up to their obligations as best they can. All we are saying is that there should be an ethic and a code so that those who are acting as the agents of the creditor do not act with insensitivity, or even a brutality, which is incompatible with civilised life and living.

On that note, I say to my noble friend that this is a season of good will. This is a time when we ought to have particular regard for the most vulnerable and least fortunate in our society. Here we have the opportunity in your Lordships' House of putting down a marker if my noble friend is unable to give us a reassuring reply. I thought that I had done my voting for this year last week, when the Government-rather foolishly, in my opinion-pressed on against the noble Lord, Lord Dear, and got a thorough hiding for their pains. I thought that I had done my voting and would not be doing any more. However, unless my noble friend can give a satisfactory reply, we might have to do the same again.

I conclude on this note, by repeating that this is the sort of thing for which your Lordships' House exists. If we cannot do this, it is difficult to justify our being here. I believe passionately in our being here, as I have tried to demonstrate over the past two years. I want us to be here, reformed to a degree, but for a very long time to come. However, I would not be able to look at myself in the mirror if I did not support what the noble Baroness so eloquently put before us a few minutes ago.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, it is hard to follow the eloquence and persuasiveness of the noble Lord, Lord Cormack. I will briefly say how strongly I support my noble friend Lady Meacher's amendment. I was most grateful for the trouble that the Minister took on Report to reassure us that, further down the line, measures would be taken that would protect these vulnerable people. However, again and again we have heard that this is an enduring, long-term issue. The people at risk are highly vulnerable.

I asked the Minister on Report what protections there might be for pregnant women and women with children under two years of age. That is an emotive question, but it is an emotive question for a very good reason. We have always appreciated how important that stage in a child's development is, and the importance of the relationship between mother and child in that early time of life. More and more, however, the research is highlighting that the very relationship between the mother and child in that earliest time actually shapes the child's brain. The valiant efforts made by the right honourable Iain Duncan Smith and Graham Allen MP to get more early intervention for our children are, I believe, based on this evidence.

We should know this kind of detail after this matter has been debated for so long. It should not be somewhere way down the line once we have legislated. I hope, therefore, that the Minister will come back with something more reassuring at this point, otherwise I am afraid that I will feel forced to follow my noble friend through the Division Lobby.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, over the years I have been very much persuaded on this issue by those who have put forward the arguments that we have heard this afternoon. However, my noble friend made a point on Report which I confess I had not thought of before. That was that we should ensure that the banks and other lenders are taken along with new arrangements, because it is so important to keep the flow of credit-something that your Lordships have discussed on many occasions.

When he comes to reply, will the Minister tell your Lordships any more about discussions with the banks or other lending institutions? After all, many discussions have taken place with the lending institutions about the availability of credit. His point was important; when he spoke last week I realised that there is another side to this. I absolutely take the points that were made about the behaviour of some bailiffs, but that very cohort, or constituency, of those who are affected would be affected if credit were not available.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

My Lords, I raised the issue of bailiffs at Second Reading. I followed it up with a Written Question which asked when the Government would respond to consultation. I was told, as I have reminded the House before, that it would be some time in the autumn. Autumn is now safely past us and we do not yet have a response. I spoke in Committee and subscribed to the amendment moved by the noble Baroness, Lady Meacher, on Report. I would have been very happy to subscribe to today's amendment had it not been for the fact that there were already four signatures on it, which would have left me as a fifth wheel on the coach of the noble Baroness.

I strongly support her amendment because it is important to get some movement here. As my noble friend Lady Smith has pointed out, the Government have introduced three substantial new proposals to the Bill at a late stage. Two of them were at least subject to the recommitment procedure, and followed consultations-consultations, incidentally, which began after the consultation closed on the whole issue of bailiffs, on which the Government consulted last winter and spring. The third amendment, which deals with self-defence, was of course tabled two days before Report, with no apparent consultation with anybody at all beforehand.

I entirely subscribe to and share the views of noble Lords who believe that the Minister is absolutely genuine in his concern about this matter, but why has it taken his department so long to consult all relevant bodies? There was an extensive consultation period; seven months have now passed. What further consultations, if any, have taken place-that is a legitimate question to ask-and with what result? The Minister indicated, in answer to previous questions, that he hoped that there would be a response by the end of November. We are now past that date, and there is still nothing to be seen. As the noble Lord, Lord Kirkwood, has pointed out, time is not running out completely, but it is running out fast against a particular deadline.

Incidentally, I hope that the noble Lord, Lord Kirkwood, will consider another aspect of the coalition agreement, to which I have made previous reference during the passage of this Bill, namely the part of that agreement which indicated that the Government would introduce a threshold of £25,000, below which it would not be possible to obtain charging orders. On the first day back in January we will have in Grand Committee regulations prescribing a £1,000, instead of a £25,000, threshold. No doubt we will have an opportunity to debate that on a subsequent occasion.

In respect of this matter, the noble Baroness's amendment is, as she put it, almost the least that could be done to get some progress quickly on this matter. If the Government do not accede to this request and if we are looking to another Bill to come forward-I do not know how many Ministry of Justice Bills we can expect to see in the next Session of Parliament-it clearly will take a long time. In the mean time, as other noble Lords have pointed out, there will be the potential for substantial suffering on the part of far too many people-not merely adults because children would be affected as well, including children in the most vulnerable and difficult of circumstances. It is simply unforgiveable that the department has let down the Minister, which is the fair way to put it, in progressing this matter. I hope that the noble Lord will feel able to accept the noble Baroness's amendment. If not, I certainly shall advise my colleagues on these Benches to join her in the Lobby.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, perhaps it will at least allow the Whips to send out the necessary message that I can make no commitment to the noble Baroness beyond what I have said in meetings and at various stages of this Bill. I will briefly try to explain why not. I have listened to this debate and I have listened to the concern of the House. Yes, the House can send messages but, in truth, the matter is being dealt with. I note that my noble friend Lord Lucas said that the matter had been being discussed for the past 33 years and that the noble Baroness, Lady Meacher, referred to merely the past 20 years. Therefore, I am not too apologetic that the department is taking a little time to take this matter forward.

The consultation paper sets out the objectives, including providing more protection against aggressive bailiffs while spelling out the need for effective enforcement; a fair, transparent and sustainable costs regime that provides adequate remuneration; and minimising excessive regulation on business while ensuring effective protection for the vulnerable. That is the balance that we are trying to get right.

In previous stages of the Bill, I have outlined that the Government are clear that aggressive bailiff action is unacceptable. We remain committed to bringing forward reforms which will protect the public from this and ensure that enforcement action is proportionate. We have a firm commitment in the coalition agreement to effect this and we will not falter. The Government understand that bailiff action can be, by its nature, a deeply unpleasant experience for those in debt. We also understand how this can be exacerbated by unnecessarily aggressive and threatening behaviour by some bailiffs. Those who are subject to bailiff action are often the most vulnerable people in society, as has been repeated on a number of occasions in this debate. We will not stand by and allow them to be subject to needless bullying, which can have a very real and significant effect on their well-being.

However, as I have highlighted previously, the Government are looking to tackle problem bailiffs in a number of ways. These are set out in the wide package of proposals within our Transforming Bailiff Action consultation paper. This package of proposals will focus on the root causes of many complaints. Among other proposed reforms, it will improve clarity so that everyone knows where they stand by stipulating when and how a bailiff can enter a property, what they can take and, not least, what they can charge.

The noble Baroness's amendment will not address these issues, nor will it supply debtors with an independent complaints process which will meet their needs. The Legal Services Act contemplates a service relationship between professionals, such as solicitors and their clients, which is not present between bailiffs and debtors. Under this amendment, debtors would not be able to complain to the Legal Ombudsman because the bailiff is not providing them with a service as required for complaints under the Act. It is therefore neither appropriate nor sensible to try to force the regulation of bailiffs into this framework which is not constructed to address the circumstances in question.

While I share the desire of the noble Baroness to see change happen quickly in this area, we must take the time to ensure that we implement the reforms which have the best chance of delivering long-term and address aggressive bailiffs. I would therefore stress that it is important to await the response to the Transforming Bailiff Action consultation paper.

I take the point made by my noble friend Lord Kirkwood and others. There is a pressure on me and on Ministers. If I ask the House and ask the noble Baroness not to press this amendment there is an onus to make rapid progress on this issue. When I was a new, young Member in the other place, I remember speaking at Third Reading and got my knuckles rapped by the Whip on my side for what he termed a Second Reading speech. Most of the speeches that have been made today could have and indeed have been made at Second Reading, at Committee and at Report. The House should look at itself and ask whether it is going to have these mini debates, important as they are, at Third Reading.

I cannot go any further than what I have told the noble Baroness. I have spent time with her and I hope she believes my own commitment in this area. I also accept the point made by my noble friend Lord Lucas that the industry itself wants progress in this area. I do not think that we are talking about 33 years or 20 years, but I cannot put a timescale to it. I do, however, give a commitment to return to the department with a very strong message from this House about a sense of urgency and I hope that in those circumstances the House will not accept any invitation from the noble Baroness to pass this amendment.

Photo of Baroness Meacher Baroness Meacher Crossbench 4:15 pm, 18th December 2012

My Lords, I thank all those who have spoken. I thank the noble Lords, Lord Lucas and Lord Cormack, for their comments from the Conservative Benches. I thank the noble Lord, Lord Kirkwood, and I thank the right reverend Prelate the Bishop of Lichfield for his time in preparing to speak in this debate. I also thank the noble Baroness, Lady Hamwee, and the noble Earl, Lord Listowel, and I am particularly grateful for the support of the noble Lord, Lord Beecham.

I was involved in the debate about bailiffs 20 years ago, but I accept that the debate has been going on longer than that. I am assured that this amendment would provide the protection of an independent appeal process and the legal ombudsman recognises this. I therefore do not accept that comment. I am grateful to the Minister for meeting me on two occasions and in writing a lengthy letter yesterday, but I have to confess that his comments are deeply disappointing. I therefore wish to test the opinion of the House.

Division on Amendment 2

Contents 233; Not-Contents 191.

Amendment 2 agreed.

Division number 1 Crime and Courts Bill [HL] — Third Reading

Aye: 231 Members of the House of Lords

No: 189 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 3

Moved by Lord Phillips of Worth Matravers

3: Before Clause 27, insert the following new Clause-

"Chief Executive of the Supreme Court of the United Kingdom

(1) The Constitutional Reform Act 2005 is amended as follows.

(2) For section 48(2) (chief executive), substitute-

"(2) The President of the Supreme Court shall appoint the Chief Executive in accordance with the arrangements for the time being in force for the selection of persons to be employed in the civil service of the State."

(3) In section 49(2) (officers and staff), omit the words "with the agreement of the Lord Chancellor.""

Photo of Lord Phillips of Worth Matravers Lord Phillips of Worth Matravers Judge 4:32 pm, 18th December 2012

My Lords, I apologise for the fact that I was not able to be present to move a similar amendment on Report, but I could not have improved on the explanation of its merits given then to the House by the noble Lord, Lord Pannick. The amendment is needed to remedy two anomalies in the Constitutional Reform Act 2005, which, in its present form, impacts adversely on the independence of the Supreme Court.

The first anomaly arises from the terms of Section 48(2) of the Act, which provides that the Lord Chancellor must appoint the chief executive after consulting the president of the court. The effect of the amendment is to make the president of the Supreme Court, rather than the Lord Chancellor, responsible for the appointment of the chief executive of the court. The amendment is appropriate because the Act expressly provides that the functions of the chief executive of the Supreme Court are to be carried out in accordance with the directions of the president of the court. Those functions include the non-judicial functions of the court in so far as the president delegates them to the chief executive.

More generally, the Act requires the chief executive to ensure that the court's resources are used to provide an efficient and effective system to support the court in carrying on its business. The president and chief executive of the court work in partnership to ensure that the court operates efficiently. Under Section 50 of the Act, the Lord Chancellor is responsible for ensuring that the court has the resources that he thinks are appropriate to enable the court to carry on its business, but he has no role under the statute in relation to the manner in which the court is run. This is quite deliberate. The whole object of the creation of the Supreme Court was to make sure that it was, and was seen to be, independent of the legislature and the Executive.

The chief executive is the accounting officer of the Supreme Court and, as such, reports not to the Lord Chancellor but direct to Parliament in accordance with Section 54 of the Act. This requires the chief executive to prepare a report after each financial year, which the Lord Chancellor is required to lay before each House of Parliament.

The first danger of the provision that the chief executive be appointed by the Lord Chancellor is that the Lord Chancellor, when making the appointment, will be concerned to appoint a candidate who will have regard to his wishes when deciding on the administrative arrangements of the court. Let me make it plain that there is no suggestion that this consideration influenced the appointment of the first chief executive of the court. The noble Lord, Lord Pannick, explained to the House how she was appointed by an ad hoc commission that included three Law Lords, under the chairmanship of a Civil Service commissioner. There is no complaint about what happened on that occasion. That process resulted in the appointment of Jennifer Rowe. I take this opportunity to recognise the admirable way in which she has performed her duties under my presidency, and to confirm that she is rightly recognised as deserving much of the credit for the successful birth and early years of the Supreme Court.

The second danger of the provision is that, because the Lord Chancellor appoints the chief executive, the chief executive will be expected to defer to the wishes of the Lord Chancellor in relation to the manner in which the Supreme Court is managed. Such an interpretation of the Act might not seem unreasonable. After all, the Lord Chancellor is to provide the court with such resources as he thinks are appropriate for the court to carry on its business. Why should he then not have a say in how those resources are used? The answer is of course that this would be in conflict with the objective of the creation of the Supreme Court, which was to give effect to the separation of powers. Lest there be any doubt about this, perhaps I may remind the House of what the noble and learned Lord, Lord Falconer, the then Lord Chancellor, said to the House on 14 December 2004, when bringing forward the amendments which became the governance sections of the Constitutional Reform Act. He said:

"The chief executive will be able to allocate resources as he considers appropriate to ensure an effective and efficient system to support the court in carrying out its business. In other words, the chief executive will be solely responsible for the administration of the court, in accordance with directions from the president, and will be free from ministerial control".-[Hansard, 14/12/04; col. 1237.]

The danger that there will be a perception that the chief executive should defer to the wishes of the Lord Chancellor is a real one. I must tell the House that during my presidency it was made quite clear to me that those who served in the Ministry of Justice at all levels were of this view. It made relations with the Ministry of Justice difficult. When responding on Report to the noble Lord, Lord Pannick, the Minister, the noble Lord, Lord Ahmad of Wimbledon, said that,

"the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court".-[Hansard, 4/12/12; col. 653.]

Far from justifying the Government's opposition to the amendment, that statement underlined its desirability, for the chief executive of the Supreme Court is accountable not to Ministers but to the president of the court and to Parliament.

The second anomaly that the amendment is designed to cure arises from the terms of Section 49(2) of the 2005 Act, which requires the chief executive to obtain the agreement of the Lord Chancellor on the number of officers and staff of the court, and on the terms upon which they are to be appointed. The staffing needs of the court are quite complex. They include security officers; secretaries for the justices and administrators; librarians; judicial assistants; operators of the television system that provides live coverage of the proceedings of the court; the staff of the communications department; cleaners; and the staff of the public cafeteria. It makes no sense at all for the chief executive to be required to obtain the consent of the Lord Chancellor, through his officials, on the number and terms of employment of this diverse staff complement. These are matters which pre-eminently should be decided by the chief executive, working in consultation with the president, who himself will be in a position to obtain the views of the other justices as to their needs. There is nothing useful that the Lord Chancellor's officials can add. Furthermore, the requirement to obtain the consent of the Lord Chancellor to these matters detracts from the independence, and the appearance of independence, of the Supreme Court, which was the objective of its creation. On Report, the noble Lord, Lord Pannick, did not press this amendment on the understanding that it raised a live issue that was subject to ongoing discussions in which the president of the court was involved.

This morning, the president, the noble and learned Lord, Lord Neuberger, informed me that these discussions had not borne fruit and that, in particular, he had been given no justification for the present form of the relevant provisions in the 2005 Act. Shortly before I came into the Chamber, I received on my BlackBerry a copy of a letter written by the Lord Chancellor to the noble and learned Lord, explaining that the Government would not be in a position to agree to the amendment because further time was required to consider its implications. I am not at present persuaded that there is any need for further time, but I look forward to hearing what the Minister has to say about this in due course. I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, perhaps I may add two points to what the noble and learned Lord, Lord Phillips of Worth Matravers, said. The first is to inform your Lordships that the chairman of your Lordships' Constitution Committee, the noble Baroness, Lady Jay of Paddington, whom I am pleased to see in her place today, wrote to the Minister on 10 December stating the committee's support for the amendment on the basis that,

"it is not constitutionally appropriate", for the Lord Chancellor to retain his present functions in relation to the appointment of the chief executive of the Supreme Court and in relation to the deployment of the court's staff.

The second point that I want to emphasise is that allowing the Lord Chancellor to retain these functions is impossible to reconcile with the Supreme Court being seen as independent of the other organs of government. The need for the Supreme Court to be seen as independent was the main reason why it was created by the 2005 Act and why the Law Lords left this place. It is of especial importance that the administration of the Supreme Court is seen to be independent of the Executive when the Executive are the respondent in a very a large proportion of the cases heard by the Supreme Court. This amendment is of constitutional importance; the arguments in its favour are simply overwhelming.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 4:45 pm, 18th December 2012

My Lords, if your Lordships can bear a third lawyer in a row, I, too, would like to express my support for the amendment. I regret that I was not able to be present at Report stage, but if I had been I should certainly have spoken in favour of the amendment.

The Government's fundamental concern, as described on Report by the noble Lord, Lord Ahmad, is that there should be "proper lines of accountability"-a quotation already referred to by my noble and learned friend Lord Phillips. My noble and learned friend and my noble friend have already dealt with that argument effectively, so I shall say no more about it.

The noble Lord, Lord Ahmad, also said that he would not revisit the arguments that had been raised historically. It is here that I want to add just a few words, because I was more directly concerned with the terms on which the 2005 Act was passed than either my noble friend or my noble and learned friend. The main argument in favour of setting up the Supreme Court was of course the presence of the Law Lords in this place, which was said to be contrary to the principle of the separation of powers. I never accepted that argument. It seemed to me then, as it seems to me now, that the Law Lords were as independent of the Executive as the members of the Supreme Court are now-neither more nor less.

Whatever the theory of the separation of powers, the reality was that the separation was complete. The back-up argument in those days was based on perception. Although we in Parliament knew very well that the law Lords were independent of the Executive, that was not-so it was said-the perception of the public, or at least of some members of the public. However, there was never any evidence to suggest that that was the perception of the public except, if I remember correctly, a single piece of anecdotal evidence. This led the noble Lord, Lord Norton of Louth in a most memorable speech-I wish he was in his position to hear me say this-to describe the whole exercise as having been based on,

"the perception of a perception".-[Hansard, 4/7/07; col. 1094.]

However, here we are-as the saying goes-and we must go on from here.

Having created the Supreme Court at a cost of £100 million, not to mention the huge increase in the annual cost of running it, we must now take it as it is and complete the job. I cannot imagine any provision more likely to create the impression of interference by the Executive in the affairs of the Supreme Court than that the chief executive should be appointed by the Lord Chancellor. If the Lord Chancellor was here, it would be no answer for him to say that in practice he would accept the nomination of a selection committee. The perception is there and, in this case, the reality is there.

I cannot remember whether we discussed Section 48(2) in the Select Committee that sat for many weeks. Nor can I remember why, in the end, we accepted the section as it stands, unless we perhaps had in mind the old style of Lord Chancellor before the Constitutional Reform Act 2005, rather than the new Lord Chancellor as he has become. Whatever thought processes went through our heads, I am now convinced that the section was a mistake, and therefore I am very glad to support the amendment.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I am going to take a rather unusual position on this and say that I am afraid I do not agree with Amendment 3. I was considerably involved in the drafting of the Constitutional Reform Act 2005 and I had no objection at that time to Sections 48 and 49, which are now objected to in this amendment. The reason why I do not welcome this amendment is that the chief executive is an administrator, not a judge. That being so, I see no serious reason why Lord Chancellors should not continue to be involved in the proceedings of Sections 48 and 49 as they now are. The administration of an issue which involves both those in charge of costs and those in charge of the law needs to recognise the real issues here because of the way in which the funds get to the Supreme Court.

I am in general a strong supporter of the two former judges who have put their names to this amendment and of the noble Lord, Lord Pannick, but in this case I fail to be able to agree with them as they would clearly like.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Adoption Legislation Committee

My Lords, although this may seem to be a technical point to some Members of the House, it is actually a matter of very considerable importance. It is wrong in law and it is constitutionally inappropriate. I am very surprised that the noble Lord, Lord Goodhart, who is an excellent lawyer, has not picked up either of those points. I have to say that the Minister, the noble Lord, Lord Ahmad, got it wrong, and it is important to get it right. It is important to preserve the separation of the judiciary, and I speak as someone who is not a member of the Supreme Court and was not a member of the Judicial Committee. However, the separation of the judiciary from the Executive is crucial at every level, so to have the chief executive of the Supreme Court answerable to the Lord Chancellor and not to the president of the Supreme Court is, to say the least, an anomaly. Also, rather more seriously, it is incorrect. This needs to be put right, otherwise there really will be a perception that the Lord Chancellor not only controls the finances but controls the person who controls the financing of the Supreme Court. I strongly support this amendment.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I am the first Member to speak to this amendment who was a member of the Government at the time that the Constitutional Reform Act 2005 was passed. I support the amendment, as I did on Report, at which point I gave the House an anecdote to illustrate why I think that it is right. It is because of the risk of the perception of a lack of independence, about which the noble and learned Lord, Lord Phillips of Worth Matravers, and others have spoken. I do not want to repeat what I said at the previous stage but, in the light of what may be said by the noble Lord, Lord McNally, it is right to remind ourselves how the Constitutional Reform Act came about.

The Act did not come about-how can I put this politely?-in the most orderly way, and the consequence was that we rather scrambled to get to the end conclusions. I am happy to see my noble and learned friend Lord Irvine of Lairg in his place and I should say that a number of noble Lords were involved in the process. However, it does not surprise me that, despite those valiant efforts, in the end we did not get the legislation completely right, and this is a provision which we did not get completely right. If we had known about the examples to which the noble and learned Lord, Lord Phillips of Worth Matravers, has at least referred, if not identified, and if the risk could have been seen that the chief executive somehow being responsible to the Lord Chancellor might lead to the view that the Supreme Court was in some way connected to the Government so that the Government were able to influence its decisions, we would not have included this provision. Therefore, despite the time spent on the Bill, in the end much of it was done through discussions between my noble and learned friend Lord Falconer of Thoroton and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, although a lot also happened on the Floor of the House. If the only thing that was not quite right was this particular provision, it was still a considerable triumph, but I hope that the noble Lord, Lord McNally, those behind him and of course ultimately the Lord Chancellor will see that this is a small but hugely important change that will do no harm at all to any of the issues of administration.

The Lord Chancellor is not responsible for the finances of the Supreme Court, a point that was made clear by my noble and learned friend Lord Falconer in, I think, the very passage to which the noble and learned Lord, Lord Phillips of Worth Matravers, referred. What would happen is that a bid would be put forward that could not be altered and it would then come directly from the Consolidated Fund. I do not think that there is anything to be accountable for. For those reasons, I strongly support the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I strongly supported, as did my party, the separation of the traditional branch from the legislative branch. At the time, I disagreed with the noble and learned Lord, Lord Lloyd of Berwick, as my party does today, about the need for it. We thought-and think-that perceptions mattered very much, and it was a great embarrassment when we travelled around the world to discover that the rest of the world could not understand how judges could take part in or vote in our debates and that the Lord Chancellor could sit in politically sensitive cases. Therefore, we strongly supported the reform process, as I do and as my noble friend Lord Goodhart does.

I disagree with my noble friend Lord Goodhart for the reason given many years ago by the noble and learned Lord, Lord Browne-Wilkinson, when he gave a notable lecture about the independence of the judiciary and warned about the way in which questions of resources and management from the Treasury could encroach on judicial independence. It was a very enlightened and courageous lecture. I agree with the noble and learned Lord, Lord Phillips, and the noble Lord, Lord Pannick, about the function of the chief executive, especially when the Lord Chancellor is not an old-fashioned, legally qualified Lord Chancellor, who, from his experience, would instinctively understand the need for judicial independence. In my view, it is all the more important that the chief executive should be accountable to the president of the Supreme Court of the United Kingdom and not to a non-legally qualified Minister. For that reason, and because we do not have a written constitution that spells out the separation of powers but only an Act of Parliament, I believe it is particularly important that the law should be clear on this in our legislation. Therefore, I support the amendment.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I add my voice to those who support this amendment. I do so with diffidence, because it may appear to the House that perhaps everything that could be said on the subject has already been said; but I hope that I will be forgiven for two reasons. The first is that, as was stated a few moments ago by the noble and learned Lord, Lord Goldsmith, it was my responsibility, as Lord Chief Justice at the relevant time, to be the spokesman for the judiciary. I had very many conversations with the person who became Lord Chancellor after the noble and learned Lord, Lord Irvine, when we strove to find the right answer to various activities which took place within the court system and which would take place in the relationship between the courts and government after the changes that the Constitutional Reform Act was going to bring about. I am afraid that I must have nodded on this point because I did not realise its significance at the time; I certainly do so now.

Secondly, in relation to the intervention of the noble Lord, Lord Goodhart, I suspect that he is influenced-as I would have been influenced, perhaps, not to attach the importance that I should have done to this point-by the fact that there was a great tradition within the Lord Chancellor's Department, as in the judiciary, that the civil servants who supported the court system could do so without undermining the independence of the judiciary. Throughout my judicial career, I worked very closely with senior civil servants and civil servants at all levels, and there was never a problem. The Permanent Secretary at the department fully understood what the independence of the judiciary required. The unfortunate fact is that in those days there was a tradition in the Ministry of Justice of civil servants and, indeed, Ministers spending substantial time in the Ministry of Justice-or, as it was then called, the Lord Chancellor's Department-and if they did not know at the outset the complexities of that very special relationship within a very short time of being there, they came to understand it because the whole ethos of the Lord Chancellor's Department was that they must focus at all times on protecting the independence of the judiciary. I believe that, so far as the courts are concerned, that continues to be the position.

I was horrified to learn of the circumstances but the unfortunate fact is that, since the creation of the Supreme Court, there have been incidents involving the chief executive-who has been referred to, in terms that I would echo, as to her ability-where it has not worked as it should. That is why I say that the noble Lord, Lord Goodhart, not knowing about these facts, does not appreciate the problems that have been created. We must not have a continuation of that because it is very important to the working of the courts and of the Ministry of Justice that the relationship that I referred to should continue in the future.

It is important that this amendment is accepted because clarity will be introduced where there is not clarity now, and the problems that occurred in the early stages of the life of the Supreme Court will not be repeated in future. The position is one such that I would have thought that the Ministry of Justice would share the views that I have just expressed. It should know, as I know, how important it is that the relationship between the courts and the Ministry of Justice is smooth and that it works efficiently. I believe that this amendment will achieve that.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee 5:00 pm, 18th December 2012

My Lords, I think I am the first non-lawyer to contribute, very briefly, to this debate. I see the Minister raising his hand and hope he will accept the point I will make.

As the House is aware, I am the chairman of your Lordships' Select Committee on the Constitution and, as the noble Lord, Lord Pannick, said, have written to the Minister in that capacity about this amendment, simply to express the view that the committee, in its meeting last week, endorsed the amendment that has been proposed by the noble and learned Lord, Lord Phillips. I am very grateful to the Minister for writing back to me in a letter with today's date, which he concludes by saying:

"I can assure you that the Government remains committed to working with the Court to consider these issues", which he says are, of course, complex.

I was therefore a little disturbed to hear from the noble and learned Lord, Lord Phillips, in his introduction to the debate, that he felt that his discussions with the current president of the Supreme Court, the noble and learned Lord, Lord Neuberger, have run into the ground or "come to nothing", which I think was the phrase he used. I would be grateful if the Minister, in replying, could perhaps elucidate or expand a little more on that sentence that he has written in his reply to me, that the Government are committed to working with the court to achieve these ends.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Judge

My Lords, I, too, feel compelled to say just a word in support of this amendment. I support it for the reasons already eloquently given by my noble and learned friend Lord Phillips of Worth Matravers and other noble Lords and have no intention of repeating those. I echo, too, his tribute to the present chief executive of the court, Jenny Rowe, who has worked tirelessly in setting up the court and progressing it over the three years that it has existed. I confirm-because I remember it all too well-what my noble and learned friend Lord Woolf said about the problem that the present wording of the legislation caused with regard to the chief executive's role at an earlier stage in the court's life.

On the critical point at issue, I respectfully suggest just this to your Lordships: constitutionally, it is no more appropriate for the Lord Chancellor to appoint the chief executive of the Supreme Court merely after consulting with the president of that court than it would be for the president of the Supreme Court, after merely consulting with the Lord Chancellor, to appoint the Permanent Secretary of the Ministry of Justice. The separation of powers means just that-the judiciary is not the Executive.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

My Lords, I speak with diffidence as, I think, the ninth lawyer to speak in this debate-albeit from the junior branch of the profession-to add my support to the amendment moved by the noble and learned Lord, Lord Phillips. For the avoidance of doubt, I should say that my noble and learned friend Lord Falconer, who is not in his place tonight, would have supported this amendment, were he here. He has made that very clear. My noble and learned friend Lord Goldsmith is right to say that the legislation under which the present situation obtains was imperfect. It is now an opportunity for the House and, I hope, the other place, to correct what was a mistake-forgivable, but nevertheless a mistake. The independence of the judiciary, particularly that of the Supreme Court, must be at the heart of our judicial system. It is timely that we are discussing this amendment tonight, because in the House of Commons today the Justice and Security Bill is being debated. The role of the judiciary in relation to certain proceedings, which we have debated at length in your Lordships' House, is very much part of those discussions. In addition, there are proposals in the air around judicial review and, again, the role of the judiciary in a particularly important and sensitive area of law.

Perception counts for a good deal in these matters. I entirely endorse the views of all but one of the noble Lords who have spoken tonight, that it is important to reinforce the independence of the judiciary. That independence has not in substance been threatened over the past few years, but there is always a risk that at some point it might be, and that in any event it might be perceived to be an issue on the part of the public. I do not know whether the noble and learned Lord will seek to test the opinion of the House if the Minister cannot provide a clear, unequivocal response to the suggestion here. Frankly, I cannot think why it should take any time at all for there to be discussions about the issue, which seems to me perfectly straightforward. If the noble and learned Lord seeks to test the opinion of the House, again, I will invite my colleagues to support him through the Lobbies.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I hesitate to intervene in the debate when so many distinguished members of the judiciary have spoken. The fact that I do so is the fault of the noble Lord, Lord Lester. Many years ago, when the noble and learned Lord, Lord Browne-Wilkinson, was about to deliver the lecture to which the noble Lord, Lord Lester, referred, the noble Lord, Lord Lester, encouraged me to speak to the noble and learned Lord and argue the case for the interest of the Treasury in the administration of justice. I had a very interesting debate with the noble and learned Lord, although I made absolutely no impact on him at all.

However, I want to put in a contrary voice because the administration of the courts, including the Supreme Court, is a matter of administration. It takes place at the taxpayer's expense. It is therefore necessary that the Government have an interest in and a responsibility for it; on these administrative matters and the use of resources it is legitimate for the Government to have a proper interest. I argue that that does not impinge on the independence of the judiciary. The independence of the judiciary, which refers to its operation as judges, and here we are talking about an administrative matter. In that case, the arrangement that exists at the moment, which was legislated for and brought into effect by the Constitutional Reform Act, is probably right. However, I realise that, in the light of the views of the members of the judiciary, this is not a popular view.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

The noble Lord's memory is correct. Does he remember that consideration of arguments of the kind he has just given led some of us to say we shall follow Australia and ring-fence the budget of the Supreme Court? That is, we should either ring-fence as they do in Australia, or ensure that the money comes from Parliament and not the Government. Does he remember that those were arguments at the time, counter to his suggestion?

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

Yes, I remember those arguments well. The issue is to what extent the Government-the Executive-should have an interest in this matter. I think that the arrangements that were introduced protect the independence of the Supreme Court and the judiciary, and I would not want to change them.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, I often think how well served we are by the depth and richness of the judicial talent that serves here in the House of Lords. I often think it, but perhaps not tonight.

This has been an interesting debate, full of mea culpas. The noble and learned Lord, Lord Lloyd, cannot quite remember how he let this through the committee on which he was serving; the noble and learned Lord, Lord Woolf, must have nodded when it went through; and the noble and learned Lord, Lord Goldsmith, said that the previous Government did not get it perfectly right. The fact is that this is an Act of Parliament carried by the previous Administration. I was very pleased to find out the intentions of the noble and learned Lord, Lord Falconer, at the last minute, although they did not really surprise me, but it seems strange that we should be discussing this.

Let me make my position perfectly clear. One of the things of which I am most proud in my parliamentary life is the steadfastness with which the Liberal Democrats delivered the votes in this House to carry through the reform that delivered us the Supreme Court. I have been a strong believer in the Supreme Court from that time-I think a little ahead of the noble and learned Lord, Lord Phillips, in devotion to the separation of powers-and that should stand in the record about my attitude to this amendment.

Of course it is possible for your Lordships to send strong messages to the other place. Let us remember that very shortly another place will be debating this Bill. However, I urge noble Lords to ponder whether it is the best way to send such a message. The Lord Chancellor can read, and I will make sure that part of his Christmas reading is the Hansard of this debate, but negotiations are going on. The noble Baroness, Lady Jay, asked whether the discussions have run into the ground. No, there has been discussion at official level in the two weeks since this issue was raised, and the letter that was quoted was from the Lord Chancellor to the noble and learned Lord, Lord Neuberger, pointing out that the Government are still considering this matter.

Let me clarify for the record that the Government do not have any concerns about the accountability of the UK Supreme Court. While there is no doubt that the Executive has a legitimate interest in the effective and efficient administration of all courts-a point that the noble Lord, Lord Butler, made very eloquently-the Government fully respect the independence of the judiciary and our duty to uphold that independence.

The amendment tabled reflects concerns about the present arrangements concerning the appointment of the chief executive, the staffing arrangements for the court and the ramifications of those arrangements for the independence of the court. This is a matter of great constitutional importance-a point made by the noble Lord, Lord Pannick. I emphasise that it is a matter of great constitutional importance, so when the noble Lord, Lord Beecham, with the impetuosity of a young solicitor says, "Why can't this be handled?", it is because it is a matter of great constitutional importance. It has been raised by a former president of the Supreme Court. It has been raised today by former high office holders-Attorneys-General, Lord Chief Justices and other Supreme Court justices. Nobody is underestimating its importance. However, I most humbly say-I am beginning to learn how lawyers manage to insult each other with the most exquisite politeness-that on a matter of this constitutional importance, where the Lord Chancellor of the day is saying that he is in negotiations and discussions with the president of the Supreme Court, it is not particularly helpful for this House to pass an amendment on the hoof in this way.

As I have said, the amendment tabled reflects the concerns, but the issue before us now is how the court's administration should be run and what involvement the Government should have in the appointment of a civil servant as chief executive. There is no easy answer to the question. Indeed, during the passage of the Constitutional Reform Bill this question was debated at length in both Houses and by the Constitution Committee. A huge amount of thought and debate was exercised over the issue of the Lord Chancellor's relationship with the court, the court's administration and whether, through this conduit, the Executive might impinge on what was termed the corporate independence of the court. This was back in 2005. The present arrangements were the culmination of that lengthy process and an agreement between the Lord Chancellor of the day and the senior Law Lord. It is not a matter that should be unpicked within a fortnight; nor will it be satisfactorily resolved by having the argument on the front pages of our newspapers.

On Report, the noble Lord, Lord Pannick, and others made clear that they thought the Lord Chancellor's role in appointing the chief executive is unnecessary and meddles in the affairs of the Supreme Court. Then, the Government made crystal clear-I make it crystal clear again tonight-that we have been listening to the House and that we intend to undertake meaningful discussions with a view to addressing this as soon as possible. However, these discussions cannot be resolved overnight. I repeat again that these are important constitutional issues and there are practical issues about the implications of civil servants being appointed by members of the judiciary. Some noble Lords will urge that the time to deal with this issue is now. However, the current chief executive was appointed relatively recently and we are not aware of any plans to modify the current staffing structure of the court. There is simply no reason why this discussion should not proceed in a measured and considered way.

I hope the House will accept that this is the proper and reasonable course. The Government have demonstrated their willingness to listen, to debate amendments and to modify our position after due consideration, when a strong case is made in this House. For example, I anticipate that we will shortly debate the diversity duty, which is an amendment related to a suggestion made by the Constitution Committee in its report back in March and which has been discussed in some detail at every stage of this Bill. By contrast, this amendment was first raised on Report. The Government said then that we would consider these issues and indeed we will, but with the best will in the world this takes longer than two weeks. These are important issues that deserve consideration and it would be remiss of the House to rush to a decision this evening.

For the avoidance of doubt, the Government have an open mind on this issue. We will be continuing discussions with the Supreme Court about the impact of this amendment, any concerns about its independence and how best that independence might be preserved. I hope, having raised this issue, that the noble and learned Lord, Lord Phillips, will be content to withdraw his amendment on the understanding that we will examine the issues it raises with the president of the Supreme Court and the Lords Constitution Committee. This is a night for judges to be judicious.

Photo of Lord Phillips of Worth Matravers Lord Phillips of Worth Matravers Judge 5:15 pm, 18th December 2012

My Lords, I am grateful to those who have supported the amendment and to the Minister for the exquisite politeness with which he has responded to it. I also commend his eloquence, for I confess that before he stood up it was my intention to seek the opinion of the House on this matter. However, he has persuaded me that there is merit in permitting discussions, which he has repeatedly emphasised are ongoing and very real, to continue without that impetus. Accordingly, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Lord Bradley

4: After Clause 29, insert the following new Clause-

"Provide assistance for vulnerable defendants through intermediaries

(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person's participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).

(2) The circumstances falling within this subsection are that the accused person-

(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or

(b) otherwise has a significant impairment of intelligence and social functioning.

(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for-

(a) assistance of the accused in preparing for court proceedings and in instructing the accused person's legal representative to be provided by a person approved by the court for the purposes of this section ("an intermediary"),

(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and

(c) the examination of the accused person to be conducted through the intermediary.

(4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section."

Photo of Lord Bradley Lord Bradley Labour

My Lords, I will not detain the House long on this new clause, as there was a good debate on the issue on Report, led admirably by the noble Baroness, Lady Linklater, who I am pleased to see in her place this evening. However, it is appropriate at Third Reading to press the Government again, briefly, on this overall matter, and particularly on the use of intermediaries in the court.

The issue of vulnerable defendants is well laid out in the report Fair Access to Justice from the Prison Reform Trust-I declare an interest as a trustee-and from my own independent report to the Government in 2009 on mental health, learning disabilities and the criminal justice system. The latter highlighted the need for vulnerable people to be supported in the criminal justice system along the criminal justice pathway; to be sure, among other things, that judges, magistrates and court staff are aware of the problems of the defendant at their first appearance in court; and that the defendant has the best opportunity for a fair trial. I add briefly that I am pleased that the current Government are in the process of implementing the 82 recommendations in my report. I praise the excellent work of the offender health division in the Department of Health and the Ministry of Justice through the cross-government National Programme Board. I hope that there will be no new barriers to the national rollout of liaison diversion services when the NHS Commissioning Board is fully established.

The new clause would ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable them to participate effectively in court proceedings, and in preparing for their own trial. One such measure is support provided by an intermediary, whose role is to facilitate two-way communication between the vulnerable individual and other participants in the court proceedings; and to ensure that their communication is as complete, accurate and coherent as possible.

Intermediaries are appointed for vulnerable witnesses, are registered, and are subject to a stringent selection, training and accreditation process, as well as quality assurance, regulation and monitoring procedures. Although vulnerable defendants do not have the same statutory rights to special measures as vulnerable witnesses do, intermediaries can be appointed at the discretion of the court. However, intermediaries who are appointed to support vulnerable defendants are not registered or regulated. The practice of registered and non-registered intermediaries being potentially in the same trial and paid different fees is clearly an anomaly in the Act.

My noble friend Lord Beecham spoke in support of the amendments to support vulnerable defendants, urging the Minister to take the time to take the amendment back so that he could report further at Third Reading. I can do no better than to quote the noble and learned Lord, Lord Woolf, who also supported the amendment:

"It is the judge's most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates".-[Hansard, 10/12/12; col. 878.]

Responding on behalf of the Government, the Justice Minister, the noble Lord, Lord McNally, agreed to take the amendment away and to write to Peers who had supported the amendment,

"to explain why I cannot do so and what we are doing to keep this matter under review".-[Hansard, 10/12/12; col. 879.]

I know that the Minister has written to the appropriate noble Lords on this matter. I understand that one of the key issues in that letter, which was sent earlier this month, is about resources. I hope that the Minister has taken the opportunity between Report and today to reflect further on the matter.

I realise that some eminent judges are present, so I am reluctant to be too certain on these matters, but when I was doing my review I went around many courts, and saw that when vulnerable defendants appeared for the first time there was a huge cost to the court in delays because of lack of support for that defendant. That often meant that the court process was delayed or adjourned to enable the issues around mental health and learning disabilities to be properly identified and assessed before the trial could continue.

The resource implication, therefore, is well offset by ensuring that vulnerable defendants at the first court appearance have that support in place. That would be cost-effective and, most importantly, would ensure that the person who is identified as vulnerable has as fair a trial as possible. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I put my name to this amendment for two reasons. The first was that earlier in the work on this Bill, my noble friend Lord Rix, who unfortunately cannot be in his place tonight, and I, together spoke with the president of the Queen's Bench Division; he in his capacity as chairman of the All-Party Group on Learning Disabilities, and I as chairman of the All-Party Group on Speech and Language Difficulties. We were very concerned at the implications of people not being able to be properly represented, and, therefore, not being able to understand the court processes that they were likely to go through.

One reason why I have added my name to this amendment is because I have since learnt, from the chairman of the Magistrates' Association, that there has been a very large increase in the number of out-of-court settlements. He quoted to me the fact that 50% of crimes of violence are now dealt with out of court. This worries me, as it worried my noble friend and I when we spoke to the president of the Queen's Bench Division, because it is just as important that people are represented during those out-of-court engagements with the police as it is that they are in court.

I know that there is a resource issue, but like the noble Lord, Lord Bradley, I have to ask whether this is not a resource issue that we cannot afford not to tackle because of the resulting cost of not taking appropriate action on behalf of these defendants, who otherwise cannot take part properly in the court and out-of-court processes.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I support this amendment. More than 60% of children in the youth justice system have communication difficulties. An inspectorate of probation report-published today, I believe, or at least reported by the BBC today-was very critical of the services for looked-after children in the youth justice system. Many of these children are placed away from home, apparently without good reason, and some young offender teams do not pay attention to the emotional impact on these children of being in care. The chief inspector said, in the BBC article:

"What we saw in this inspection really shocked us ... All of these things are impacting on their life chances-what we are seeing for these children are very poor outcomes ... Youth offending team workers' aspirations for the children were 'depressingly low'".

The report said many staff had become "desensitised" and were "under-qualified".

I am not sure whether looked-after children would be categorised as vulnerable defendants in this system. I am sure that many of them would because they have additional problems, which arise from their trauma. I hope that this emphasises the point that vulnerable defendants-particularly vulnerable young defendants-need proper intermediaries to provide them with assistance in the courts.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Liberal Democrat 5:30 pm, 18th December 2012

My Lords, I support my noble friend-he is my noble friend although he is on the other side of the Chamber-in what he said about intermediaries. I spoke about this issue on Report. I believe that the underlying problem is the lack of even-handedness and fairness between what witnesses with a whole range of special needs can have and what defendants with similar special needs can have. Witnesses are entitled to qualified, registered, accredited, paid and trained intermediaries to represent them. Defendants do not have that entitlement; nor do they have the same rights. When they need it, they tend to have this kind of support at the discretion of the court. They do not get registered or regulated people and they get people who are paid a lower fee.

My question to my noble friend is: what is the justification for this discrepancy when, surely, everyone is entitled to a fair hearing and to proper justice in court? I thank the noble Lord, Lord McNally, for his letter in which he referred to Section 104 of the Coroners and Justice Act 2009 and stated that "certain vulnerable defendants" can receive assistance from an intermediary. At the end of that paragraph, he stated that the Government had decided to defer the implementation until full consideration could be given to the practical arrangements and resource implications. He stated that the Government were still looking at the practical and resource issues, and had no immediate plans to bring Section 104 into force. That seems clear to me and I find it astonishing, distressing and wrong that this kind of discrimination should be taking place between groups of people-witnesses and defendants-with similar needs. I hope that my noble friend can reassure me and give me an answer on that.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, it comes as a sort of alarm to hear the noble Lord, Lord Ramsbotham, indicate that there may be vulnerable people who, because they are unrepresented and do not have adequate support, may be agreeing out of court to cautions or to certain kinds of settlement of charges against them without proper legal advice. That should be a serious source of concern. In responding, I hope that the Minister will have something positive to say. Undoubtedly, the removal of legal aid is having that kind of outcome. I await with interest what the Minister will say. I support any protection that there can be for the vulnerable in the courts.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

My Lords, I take the Government's point about resources, but as my noble friend rightly points out, there are two sides to that equation. One is the cost to the system, which can flow from inadequate representation of defendants, adjournments and the rest of it, as well as the cost of providing it. Of course, there are defendants who get assistance in the form of interpretation. As it turns out, recent developments in interpreting services have been, to put it mildly, controversial. Contracts have been given to organisations that apparently have not performed very well, at considerable cost in terms of the fees paid to them. Equally, as might be the case in connection with people who are unable to understand proceedings and follow them unassisted, some of the interpreters who turned up to the courts were simply not up to the job. It has been something of a disaster.

This is an analogy for the Government to look at in terms of providing services for people who, for different reasons, are unable perhaps to follow a case properly, to understand it properly, or to give proper instructions to their legal advisers. I hope that the Government will look at that and look at this position in the round. The noble Baroness has already identified the discrepancy between witnesses and defendants. Here, we potentially have two classes of defendants, some of whom may not speak English adequately and for whom interpretation will be provided, and others who may not be able to follow because of learning disabilities or other aspects, and for whom nothing would be provided.

Looking at the whole situation surely is sensible. I hope that the Government will acknowledge that there is a disjunction here between what is provided for different classes of defendants, and will not simply put this on the back shelf but will look at it with a degree of urgency. Miscarriages of justice can flow at any time from failure to provide adequate assistance, whether that is legal aid or, as in this case at least, the kind of support that can be offered by those described in my noble friend's amendment. I hope that the Government will acknowledge that there is an issue here and that, at the very least, if they are not able to respond firmly and conclusively tonight, that they will give it more urgent attention than was indicated in the letter which was recently sent out.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Lord in Waiting (HM Household) (Whip)

My Lords, I must admit that, as I listened to the debate, time stopped for a moment when I saw the annunciator freeze. I do not know whether that was due to the weight of arguments that were presented on the previous amendment. Nevertheless, my attention remains focused on this one. As noble Lords acknowledged-including the noble Lords, Lord Bradley and Lord Beecham-my noble friend Lord McNally, following the last debate, wrote to interested Peers on this amendment.

I have nothing specific to add but certainly I will seek to answer some of the questions that arose. As was said on Report in response to an amendment moved by my noble friend Lady Linklater, there is already a provision in statute for "certain vulnerable defendants" to receive assistance from an intermediary when giving evidence. I shall return to that point in a moment. That is in Section 104 of the Coroners and Justice Act 2009.

The point was made about the Government deferring implementation. It is important to understand that they decided to defer implementation until full consideration could be given to the practical arrangements and resource implications. I reassure the House that we are still looking at these practical and resource issues because they are important.

On the points raised about discrimination, not only does Section 104 provide for intermediaries to be used in support of defendants, but the courts already have the power under common law to order such use when they consider it necessary.

The noble Lord, Lord Ramsbotham, referred to vulnerable defendants. As I said, common-law powers exist to appoint an intermediary to assist vulnerable defendants if and when the courts consider it necessary. Guidance, therefore-the Government have moved forward on this-on appointing intermediaries in such circumstances was issued to all courts last year. It is the duty of the courts to ensure that defendants receive a fair trial. In the case of vulnerable defendants, that entails making sure that they fully understand what is taking place and that trials are conducted to timetables that take account of their ability to concentrate.

The noble Baroness, Lady Kennedy, made a point about a fair trial for all vulnerable defendants. To give a couple of examples, the court can make an order allowing a vulnerable defendant, for example, to give evidence over a live link. Much more can also be done by the defendant's legal representative to aid communication. A vulnerable defendant should always be represented, as one of the criteria in the interests of justice test that is used to determine whether an applicant is entitled to legal aid is that the defendant may not be able to understand the court proceedings.

Coming back to the crux of the point, it is the duty of the courts to ensure that defendants receive a fair trial. The Government are committed to ensuring that vulnerable defendants fully understand what is taking place. I have already alluded to the fact much can be done in terms of the defendant's legal representative to aid communication.

In view of the reassurances that I have given, the letter written by my noble friend Lord McNally and the assurance that the Government are looking at this and at the common-law provisions that exist, I hope that the noble Lord will be minded to withdraw his amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I wonder whether the Minister could answer a question about the increase in the number of out-of-court settlements. This is of extreme concern to the Magistrates' Association, not least because of the increase in the number of out-of-court settlements of cases involving violence.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Lord in Waiting (HM Household) (Whip)

The noble Lord raises an important point and, with the permission of the House, the Minister will write to him directly on that point. With the amendment as it stands, this issue may not have a direct impact, but the noble Lord raises an important point and the Minister will write to him.

Photo of Lord Bradley Lord Bradley Labour

It is disappointing that between Report and Third Reading the Government have not reached the conclusion that they should immediately implement Section 104, but I assure the Minister, as he would expect, that we will continue to pursue this matter with the implementation of the National Liaison and Diversion Programme, which fits neatly with the provisions for vulnerable defendants in court, to ensure that there is fairness of approach between witnesses and defendants in court proceedings. However, in the light of the Minister's comments, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 34 : Restriction on right of appeal from within the United Kingdom

Amendment 5 not moved.

Schedule 13 : Judicial appointments

Amendment 6

Moved by Lord Marks of Henley-on-Thames

6: Schedule 13, page 218, line 11, at end insert-

"Encouragement of diversity in appointments to the Supreme Court

(1) Part 3 of the Constitutional Reform Act 2005 is amended as follows.

(2) After section 31, insert-

"31A Diversity

The Lord Chancellor and any selection commission convened under section 26 must, in performing their functions under sections 27 to 31, have regard to the need to encourage diversity in the range of persons available for selection for appointments.""

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat

My Lords, I spoke on the topic of judicial diversity at some length on Report and I shall not detain the House long in this debate.

There is a consensus across this House and in Government on how important it is that the arrangements for encouraging judicial diversity should apply across the court system and particularly in the Supreme Court, and that the duty to encourage diversity should be specifically imposed at the highest level. It is for that reason that I welcome the Government's Amendment 8. to which the noble Lord, Lord Pannick, and I have added our names. By imposing the duty, as the amendment does, to

"take such steps as that office-holder"- either the Lord Chancellor or the Lord Chief Justice of England and Wales-

"considers appropriate for the purpose of encouraging judicial diversity", the duty is imposed in respect of those two officeholders' exercise of all their functions where that duty may be relevant.

Amendment 8 may make my Amendment 6 unnecessary because it applies to judicial appointments to the Supreme Court. This leads me to my Amendment 7, which would permit a tie-breaker or tipping-point procedure to apply to appointments to the Supreme Court. There is no difference in principle between the Government and the movers of this amendment-myself, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Pannick-as to the appropriateness of such a procedure. The procedure applies to other appointments lower down the system as a result of the Bill, but without the amendment it does not apply to appointments to the Supreme Court.

The Government have no difficulty in accepting the principle but my noble friend expressed the view that its application was already permitted by Section 159 of the Equality Act 2010. I took the liberty of writing in some detail to my noble friend to explain why I took a different view and, while I may not have completely convinced his officials of the rightness of my position, I now understand that the Government are inclined to resolve the issue by putting the matter beyond doubt at a later stage in the passage of this Bill. On the basis that I am right about that and that the amendment will be made, then I am grateful to the Government for their concession and will say nothing more at this stage.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords 5:45 pm, 18th December 2012

I do not wish to pre-empt or shorten the debate, but it might help if I were to say something here. I hope that my noble friend Lord Marks will withdraw Amendment 6 as it is overtaken by the subsequent amendment. I will respond first to my noble friend's Amendment 7, which seeks to apply a tipping-point principle to appointments to the UK Supreme Court.

The Government's position has always been that a tipping-point principle should apply to the Supreme Court and we believed, as he said, that the tipping point in Section 159 of the Equality Act 2010 already applied to such appointments. However, as my noble friend Lord Marks explained, there could be a contrary legal view and I can see that there may be merit in the argument that this matter should be put beyond doubt. Therefore, I am happy to say that my right honourable friend the Lord Chancellor is content for me to take this amendment away for consideration with a view to returning to the matter when the Bill goes to the other place.

Amendment 8 concerns whether the Lord Chancellor and Lord Chief Justice should be under a statutory duty to encourage judicial diversity. Following the debate on this issue on Report, I agreed to discuss the matter further with the Lord Chancellor and Lord Chief Justice in order to reflect the strength of feeling expressed by the House. Amendment 8 is in response to that further consideration.

There is much agreement in the House about the importance of a diverse judiciary that more closely reflects our society. There is also agreement that strong leadership is needed to bring about this change. Amendment 8 helps achieve that leadership by giving a clear declaration of the importance of the Lord Chancellor and the Lord Chief Justice promoting diversity. Therefore, as I explained, in view of the reasons and undertakings I have given, I hope that my noble friend Lord Marks will withdraw Amendment 6 and will not move Amendment 7. I commend to the House Amendment 8, relating to a diversity duty, and I thank the Constitution Committee and other noble Lords who made the case so strongly for an amendment of this sort. I emphasise again that I will take away Amendment 7 for suitable representation in the other place.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee

My Lords, my name is not on this amendment but I have spoken several times on this subject during the course of the Bill. I welcome the Minister's further discussions with the Lord Chancellor, and the government amendment. As he said, it reflects the Constitution Committee's considerations of this matter which, as he mentioned in the discussion on a previous amendment, have been going on since the beginning of this year. I am delighted that he has taken the view that he has and that he is proposing Amendment 8.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I, too, am very grateful to the Minister for bringing forward Amendment 8. It is important to underline that Amendment 8, and the personal obligation that it will place on the Lord Chancellor and the Lord Chief Justice, is not to question in any way the commitment and the work done in this field by the current Lord Chief Justice, Lord Judge, which has been considerable. Nor is it to suggest that appointments to the Bench should be made other than on merit. There are highly qualified women and members of ethnic minorities at the Bar, in solicitors' firms, in the CPS and in the government legal service, and every effort needs to be made to communicate the message that applications from them for judicial appointment would be specially welcomed.

The House heard in Committee and at Report the personal commitment of the noble Lord, Lord McNally, on the issue of promoting judicial diversity. I am pleased that through his efforts the amendment has been tabled on behalf of the Government.

Photo of Baroness Prashar Baroness Prashar Crossbench

My Lords, I, too, welcome this amendment and thank the Minister for accepting the arguments. The Judicial Appointments Commission recommended this way back in 2008 and I am delighted that it has been agreed and that it is recognised that promoting diversity is a tripartite effort and that leadership is much needed. I want to put on record my thanks.

Photo of Baroness Benjamin Baroness Benjamin Liberal Democrat

My Lords, I would not normally speak in a debate such as this, but this matter is very close to my heart. I thank my noble friend for bringing forward the amendment and, most of all, thank the Minister for his response. I hope that this provision will be embedded in our society to make sure that people of diverse backgrounds feel as if they matter and that people care.

Photo of Baroness Neuberger Baroness Neuberger Crossbench

My Lords, as noble Lords know, I chaired the Advisory Panel on Judicial Diversity a couple of years ago. I have had lengthy conversations with the Minister on this subject. I am absolutely delighted-and want to place it on record-that we have Amendment 8 and that this commitment is now on the statute book. This really is a wonderful day.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

My Lords, the Opposition are delighted to join in this outbreak of consensus and congratulate the Minister on a very statesmanlike response.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Given those interventions I wish only to quote somebody who never made it to this House and say that this is not the end of the beginning. I knew that I would get that wrong, but noble Lords know what I mean-it is the end of the beginning. Of course, the person I am quoting rehearsed these things much more than I do. However, I hope that this is the start of a real drive for diversity. Those who have just contributed to the debate have played a major part in that. However, as we sometimes find in other debates in this House, there is battle still to be joined in this area.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

Perhaps the Minister would care to fortify himself before these debates in the same way that Mr Churchill did.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat

I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by Lord McNally

8: Schedule 13, page 218, line 24, at end insert-

"Encouraging diversity

9A In Part 6 of the Constitutional Reform Act 2005 (other provisions relating to the judiciary) after section 137 insert-

"137A Encouragement of diversity

Each of the Lord Chancellor and the Lord Chief Justice of England and Wales must take such steps as that office-holder considers appropriate for the purpose of encouraging judicial diversity.""

Amendment 8 agreed.

Schedule 15 : Dealing non-custodially with offenders

Amendment 9

Moved by Lord Woolf

9: Schedule 15, page 268, line 6, at end insert-

"Part 6A Provision for female offenders

28A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.

(2) Provision under sub-paragraph (1) shall include provision for women wherever appropriate to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind."

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I begin by disclosing an interest in respect of this amendment as chairman of the Prison Reform Trust. I also acknowledge at the outset that this amendment, which is supported by the noble Lord, Lord Ramsbotham, builds on an amendment tabled by the noble Baroness, Lady Linklater, and mirrors an amendment tabled by the noble Baroness, Lady Hamwee. I am grateful to them for the work they have done.

The noble Lord, Lord Rosser, supported the amendments which were proposed on Report. I hope that that will be his position today. I also hope that the good will which has just been displayed on both sides of the House will continue and apply to these amendments as they are very much like the amendments that the Minister and I have discussed on a number of occasions with regard to restorative justice. These amendments come out of the very distinguished report of the noble Baroness, Lady Corston, which is well known to this House, A Review of Women with Particular Vulnerabilitiesin theCriminal Justice System. That report was made as long ago as 2007 and at the time was received by all Members of this House with approval. I hope that I may take up a moment of the House's time to read paragraph 3 of the report's executive summary which seems to me to sum up the report. The noble Baroness said that,

"it is timely to bring about a radical change in the way we treat women throughout the whole of the criminal justice system and this must include not just those who offend but also those at risk of offending".

She said that this will require,

"a radical new approach, treating women both holistically and individually-a woman-centred approach".

She continued:

"I have concluded that there needs to be a fundamental rethinking about the way in which services for this group of vulnerable women, particularly for mental health and substance misuse in the community are provided and assessed. There needs to be an extension of the network of women's community centres to support women who offend or are at risk of offending and to direct young women out of pathways that lead into crime".

I urge the House to accept that the amendments are very much in the spirit of that report. When similar amendments were proposed on Report, the Minister was very sympathetic towards them, as one would expect. However, he advanced the argument that that was not the time to accept them because the Government's strategy regarding women in the criminal justice system had not yet been rolled out. He pointed out that the fact that a Minister had been appointed to be the champion of women in this area was a huge advantage and that we should be reassured by that and accept that the Government had the right intentions although they were not in a position to move on the matter at that stage. Certainly, I readily accept that the appointment of the Minister to whom I have referred, Helen Grant, is a great advance in this field. Her appointment should be warmly welcomed. I anticipate that over time great things will come from that.

However, we have drafted the amendments which the House is now considering in a way which we respectfully suggest could not in any way interfere with the rolling out of the Government's strategy, once that strategy is revealed. If I am wrong in what I have just said and the Minister can indicate to me why, some five years after the publication of the Corston report, the amendment should not be the first recognition in legislation of what the report recommended, I will certainly consider my position further. However, I am bound to indicate to the Minister that although I accept entirely that his intentions are the very best, I cannot see how the amendment could cause any embarrassment to the rolling out of the strategy to which I referred. I beg to move.

Photo of Baroness Corston Baroness Corston Labour

My Lords, I congratulate the noble and learned Lord, Lord Woolf, on tabling this amendment, for which I signify my support. However, I have to convey to the House an element of great frustration in that by the time the strategy which we have been promised is published three years will have been wasted. I have now wasted quite a lot of my patience listening to Ministers say they are following the Corston report. It is not true.

I entirely endorse what the noble and learned Lord, Lord Woolf, said about women at risk of offending. Giving money to a probation trust does not provide any services to women at risk. This is something that over time I have pointed out to Ministers and which I conveyed this morning to the Justice Committee of another place. Given the time of day and the pressure of business, I wish briefly to signify my agreement to the amendment tabled by the noble and learned Lord, Lord Woolf, and to urge the Government not to waste any more time.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:00 pm, 18th December 2012

My Lords, I echo everything that my noble and learned friend Lord Woolf has said. That is why I have added my name in support of the amendment. I also note what the noble Baroness, Lady Corston, said about the strategy. This is not the first time that we have had a champion to take forward women's issues. I am interested that most recently the shadow Minister of Justice in the other place supported the cries which many of us have made over many years for a women's justice board rather than just a champion. However, that is not the point of the discussion today.

I shall speak for a short time to my Amendment 10, which mirrors the suggestion for women, but points out the need for special treatment of young adult offenders. I do this with a slightly heavy heart, because six months ago, during earlier consideration of the Bill, we were promised a government response to the probation consultation. I had hoped that we would have had that by now setting out how probation trusts would be enabled to deliver appropriate support and rehabilitation arrangements for young adult offenders. It has not happened. I warmly agreed with the noble Lord, Lord McNally, in Committee when he said that if only we could extend some of the lessons that we have learnt from the treatment of young offenders under the age of 18, we might be able to have a similar impact on those aged 18 to 21 or 18 to 25. That has not happened. I note with wry amusement that the Minister castigates those of us who question current plans to commission justice services on a payment by result basis by saying we are looking a gift horse in the mouth because of the Prime Minister's involvement in the rehabilitation process. I have to say that I have been looking for gift horses in this field for the past 17 years and they have all turned out to be chimeras and flown away.

Several times when discussing this issue I have suggested that instead of the clocks around this House saying 0:10, they should say PANT-standing for "people are not things". We have had too much about things and not enough about people in this particular group. I shall quote four reasons. Young adults have many complex needs. They come on top of the physical and mental maturing that is taking place. When you add homelessness, poverty, unemployment, educational failure, substance misuse, mental health problems and victimisation, exacerbated by all child support services ceasing at the age of 18, you have an unhappy group. Although the age group makes up only 4% of the population, 15% of those starting community sentences come from it and 14% of those starting custody. When no one is responsible for looking after them in the criminal justice system, then you have a group which clearly needs attention.

It is interesting that the Barrow Cadbury Trust's Transition to Adulthood Alliance has proved that imposing additional requirements without the necessary support to help these people understand what a sense of responsibility means and to address the underlying causes of offending and their chaotic lifestyles is likely to set them up to fail. This all boils down to the fact that people are at the heart of looking after the needs of these young adult offenders. In particular, there needs to be long-term contact with a responsible adult. That is worth all the programmes, initiatives, commissioning and payment by results that you can think of. Somebody is going to make that difference. If I make an impassioned appeal yet again for this amendment, it is because people are at the heart of what this country is all about. As I have said many times, if we as a nation continue to make inappropriate support and rehabilitation arrangements for this vulnerable group, then we fail them and deserve to be castigated for doing that.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I too support this amendment. Those who work at the front line with women who come before the courts share the frustration voiced by my noble friend Lady Corston. So much time has passed since her report that it is a serious failure for us as a nation that we have not dealt with this issue of women offenders and the best way of responding to it. I know that the Minister is well aware of the statistics. About 80% of the women who come before the courts are victims, brought up in homes where domestic violence was part of the round or where they were sexually abused. They are more victims than many who readily bear that title. Over 60% of them suffer from mental illness and 66% are mothers with children. When we send them to prison, we actually visit the effects on whole families, bringing the care system into play. Housing is often lost and the consequences are dire.

Real speed is needed to respond to this. I attended a conference only a week ago chaired by the previous Chief Inspector of Prisons, Dame Anne Owers. The room was full of people who work on the front line in the probation service. All said that they hoped the Government would take urgent action. I support the amendment but I also want us to say that my noble friend Lady Corston did an absolutely vital piece of work. It reiterated what many people had said before, recently in Scotland by Dame Elish Angiolini. I hope that the Government will see that this is a story that has been told over and over again. Somehow we have to respond with greater speed than has happened so far.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, as someone who has put her name to amendment after amendment on this issue of why on earth we did not include women in a Bill on crime and courts, I hope that the Government will do something about it. The Corston report is totally brilliant. We have all agreed that. It set out the areas that needed attention and not just that: we all know that there were many reports before it. It is not just a question of five years, but of report after report making special recommendations about the needs of women offenders. We all know the degree of mental health problems and sexual and other forms of abuse that these women have had over the years. Equally, we know of the terrible damage to children when families are broken up and children taken into care.

Returning to what my noble friend said about young offenders, I was looking at a report by the probation inspectorate. Ofsted and, I think, Estyn did a sample looking at the support that these young people had. Many of them have, no doubt, come from homes such as this, and have been in care for goodness knows how long. More than a third of these children examined by the inspectorate were placed more than 100 miles from home, and a lot of them were found in situations where they were almost next door to offenders. One was found having sex with a 15 year-old boy in a children's home. It is not exactly a pretty picture.

Although we did not manage to reach these amendments on the days that we were promised they would be reached, and therefore could not vote on them and cannot vote on them now, will the Government please think very hard about making these changes? I have waited a long time this afternoon and have not taken up time on other amendments. We should not wait just because we have a brilliant Minister; I am sure that she is brilliant. Above all, I hope that we can now ensure that mention is made in the Bill of the needs of women, who are a very important group.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I hope I will be forgiven if I contribute briefly to this debate because I have taken little part in it hitherto. However, I cannot resist rising to speak strongly in favour of Amendment 10.

I started my life in the legal profession traipsing around the magistrates' courts of eastern England. For several years, I said to myself at the end of every day that there but for the grace of God would I have gone. We are an extraordinary race. We are so intelligent and forward-thinking in many ways, yet when it comes to penal affairs, we have an extraordinary ability to fail to see our own best interests. Today, we would all agree that community life is at a low ebb, and the weaker that the communities of this country are, the greater the likelihood of certain groups of young adults casting themselves adrift and offending against the mores of society, which, unfortunately, they often do.

We are in a society obsessed with money, celebrity and sex. There is a group of young men and women who think nothing of themselves and are thought nothing of. They have succeeded at nothing and failed at everything. Educationally, they are a failure. They have little prospects, little ambition, little self-esteem and no respect. It is this group who Amendment 10 seeks to help. Again and again, we allow our distaste of the behaviour of many of these young people to stand in the way of intelligent redress. It is in our self-interest to ensure that this amendment, or something like it, is passed and that Governments of all persuasions are required to do something specific about it. It is for those reasons that I strongly support Amendment 10.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, as we have heard, many of these women will, as children, have been abused in their own homes. A disproportionate number will have then entered the care system, and a disproportionate number of those will then have their children taken into care. A disproportionate number of the young people we have been discussing will have been abused in their homes when they were children and will have been taken into the care system. Although there have been improvements in that system, many will have experienced multiple foster placements-as many as 30, and some more than 30. They will often have experienced many changes in social worker.

I commend these amendments to the Government and I particularly commend the words of my noble friend Lord Ramsbotham when he said that what these young people need is a long-term, enduring and reliable relationship with a responsible adult. Again and again, reports into the care system identify that continuity and reliability is the key to improving outcomes for these young people. I hope that the Minister can give some encouraging response to these amendments, as I am sure that he will.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 6:15 pm, 18th December 2012

My Lords, given that this is Third Reading, I will attempt to be reasonably brief. I want to talk separately to the two amendments in the group.

We support the principle behind Amendment 10, given that it is clearly designed to enhance the prospects of rehabilitation and reduce reoffending. That amendment is, no doubt, prompted by the fact that many child-focused support services fall away when young people reach the age of 18. Our reservation relates to the potential cost of delivering the services called for in that amendment because it seems to be a little open-ended, unlike the amendment on female offenders, which is more specific.

The first part of Amendment 10 requires each probation trust,

"to make appropriate provision for the delivery of services to young adult offenders", and goes on to say that this,

"shall include provision for services which provide support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders".

In other words, it would appear that these services will either be in addition to community orders or be extensions of community orders, because that amendment refers to these services increasing,

"the likelihood of compliance with community orders".

It is not clear what these services will be and whether they are likely to involve a significant, or potentially significant, financial commitment going well beyond existing and projected levels of expenditure.

The issue raised by Amendment 10 is important and will, no doubt, receive further consideration when the Bill reaches the other place, including on the financial and resource commitments that would or would not be involved. However, because we do not have a feel for the cost of implementing that amendment in a way necessary to achieve the objectives referred to by the noble Lord, Lord Ramsbotham, we are not able to give it our support tonight and will abstain if it is put to a vote.

Turning to Amendment 9, we had a discussion on Report about provision for female offenders. In his response, the Minister reiterated what the Government have been doing in this field and then stated that they would no longer be publishing their strategic objectives for female offenders by the end of this year, which the noble Lord had indicated in Committee was the intention, due apparently to change of Secretary of State in September. The noble Lord told us that the delay was good news, which presumably means that if the Government had kept to their declared intention, as stated by the Minister in Committee, it would not be such good news.

The Minister's argument for rejecting the amendments moved by two of his noble friends on Report was not one of cost-indeed, he told us of additional money being provided for the funding of women's community services-but was simply because he did not think that the present situation would be improved by a statutory commitment on provision for female offenders, as provided for in those amendments. As has already been commented on, the noble Lord went on to say that some of his colleagues had an ability to look gift horses in the mouth. He did not tell us why the situation would not be improved by a statutory commitment. There is a body of opinion in your Lordships' House that thinks that a statutory commitment in a Bill-with a schedule on dealing non-custodially with offenders that makes no specific reference to, or provision for, women, and with NOMS funding for women's centres guaranteed only until March 2013-will be far more effective than soothing words and sincere good intentions in ensuring that appropriate provision for female offenders is made, now and in the future, through agreeing to the amendment. We support it and will do so, should it be put to a vote.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, we are soon to be passing the three-hour limit for these debates at Third Reading. A reoccurring theme in all the debates on the Bill has been the straying into what I would describe as Second Reading speeches and an attempt to rerun cases that have been made. I respectfully say to the House that if this is going to be the norm, we may well have to talk to the Opposition about how we handle Third Readings. I am not talking about whose amendment it is, I am talking about the usual channels. If we continually have complete reruns of debates, it does make business management extremely difficult. Sometimes I think that noble Lords overemphasise winning votes in this House; making things happen. I actually think that what has the greater influence is the well argued debate rather than the vote, but perhaps that is because I am getting used to being beaten at this Dispatch Box.

We had an informed and extensive debate about female and young adult offenders on recommital and Report. I would also say that sometimes the speeches of the noble Lord, Lord Ramsbotham, make it sound as though nothing has happened in the past 17 years. Successive Governments have grappled with this, and certainly during my term of office I have fought very hard to put the specific problems of female prisoners to the forefront. I fully accept the points that were made by the noble Baroness, Lady Kennedy. I am disappointed that the noble Baroness, Lady Corston, thinks that nothing has been done with her report. We expect to publish in January, and I make no apologies for the delay; I would rather get something right than meet an artificial deadline. I hope that when we publish in the new year noble Lords will see the work that Helen Grant has been carrying out with the support of the Lord Chancellor. As I have said before, do not belittle the fact that a Conservative Lord Chancellor has openly said that he sees the necessity of giving priority to women prisoners, as he said today at Questions in the House of Commons. Hopefully in the new year we will put that strategy into place, and I am sure that we will have a good opportunity to debate that.

Equally with young adults, it is not a matter of carving out from one Government to another on this. I read the report that was published today about young people in care with a sense of collective shame at how these things are being dealt with. However, as those who have previously had those responsibilities know, it is often a matter of convincing colleagues in government, and finding resources when there is competition from other departments that have equally strong arguments. I do not think there is any doubt that we believe that the rehabilitation of both groups is important. We strongly agree with the arguments that have been employed, and that is why we are already investing significant effort and resource to ensure that female and young adult offenders receive the right support.

In the previous debate, I gave examples of the many projects, including those in Lancashire, Durham and Derbyshire, that trusts are running for female offenders. For young adults, likewise, many probation trusts are already coming up with innovative approaches to supporting this group. For example, in London the trust is working on an imaginative project by which some staff will work in both the youth offending team and the trust. This is to ensure that the transition between the youth and adult estate works effectively. In the east of England, probation staff have been developing closer links with leaving care services to ensure that the particular needs of these young adults are being met.

I hope, therefore, that noble Lords will recognise the Government's strong commitment to providing the right support for women and young adult offenders. There is agreement across this House that we need to do so. What we are debating is the mechanism for delivering that support, not whether we should deliver it. It is important to be clear here that the projects I mention have not been centrally imposed. They have been delivered from the ground up, by committed and passionate staff in probation trusts, to respond to the needs of women and young adults in the area.

Local innovation is critical if we are to have effective services for these groups. I believe the system we already have strikes a good balance between local innovation and central support. I do not believe that a statutory duty is necessary to deliver this.

The relationship between NOMS and probation trusts already gives a framework that ensures these groups are prioritised. For example, trusts are already required by the NOMS Commissioning Intentions document to make appropriate provision for women in the community. Trusts are currently discussing their proposals for services for female offenders in 2013-14 with commissioning experts at NOMS, and will be challenged where these do not appear to be sufficiently robust.

Similarly, I have already mentioned on Report that the operating manual on unpaid work requires that women should be allocated to work placements which take account of their needs. This sets out a presumption that female offenders will not be required to work alongside male offenders.

On young adults, our current system balances local delivery with central support. As with female offenders, trusts are required by NOMS to commission or deliver an appropriate range of services to address the causes of young adults' offending. To support this, NOMS has provided trusts with information on the specific needs of young adults that will help them and other providers take an evidence-based, effective approach to tackling re-offending. This system allows for local decision-making on how best to meet the needs of these groups.

In short, I wholeheartedly agree with the arguments that noble Lords have made about improving outcomes for female and young adult offenders. I hope that I have reassured noble Lords that NOMS and probation trusts are already taking a tailored approach to supporting them. However, our focus should be on supporting local areas to make further improvements. The system that we have already allows for this. Creating new statutory duties for trusts is not the right way to bring about the improvements that we want for these two groups.

In light of these assurances, I hope that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Ramsbotham, will agree not to press their amendments. Perhaps I may give just one little bit of encouragement to the noble and learned Lord, Lord Woolf. Yes, we did have lots of talks about restorative justice, and restorative justice is in this Bill, but getting it into the Bill took lots of talks between and within departments, letters to various Cabinet committees et cetera. Some of these things take time, but there should be no doubt that young offenders and women offenders are on the Government's radar. Ministers at the MoJ, and particularly my colleague, Helen Grant, are working very hard to make progress in these areas. With those assurances, I hope that noble Lords will agree not to press their amendments.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I thank those who have spoken in favour of the amendment and all those who have taken part in this debate, and I thank the Minister for his response. I hope that he will accept from me that I have no reservations in accepting that he sincerely believes what he has just said to the House.

However, there is a difference between the approach of the Minister and that which I was urging upon the House. I say that the situation with regard to women in the criminal justice system is one where there is a crying need for there to appear in the statute something which speaks of Parliament's concern.

I have great sympathy for my noble friend Lady Corston in her feeling of frustration at a lack of action in respect of her report, which was welcomed so warmly. It seems to me that, in view of the issue between us and because the Minister has not sought to identify any possible prejudice that could come-

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I can only make one last appeal to the noble and learned Lord. Does he really think that it will advance one inch the cause that he espouses if we have a Division at this point, where people who have not been in the debate will come in and be told, "Oh, you're voting in favour of women or voting against women."?

Noble Lords:

Shame!

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

It is no use saying "shame". There is no division between us, and to suggest that there is does not further the cause.

Photo of Lord Woolf Lord Woolf Crossbench

Well, of course, I listen very attentively to what the Minister says, but perhaps he will forgive me if I bring the agony to an end by indicating that, as I see it, there is nothing in the proposed provision which can harm the Government's good intentions. I think that there is a difference of view here: between those who feel that the statute should contain a statement of recognition of the special position of women in the criminal justice system and those who do not. In those circumstances, I seek the opinion of the House in respect of my amendment.

Division on Amendment 9

Contents 187; Not-Contents 159.

Amendment 9 agreed.

Division number 2 Crime and Courts Bill [HL] — Third Reading

Aye: 185 Members of the House of Lords

No: 157 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 10

Tabled by Lord Ramsbotham

10: Schedule 15, page 270, line 24, at end insert-

"Part 7AProvision for young adult offenders

30A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to young adult offenders.

(2) Provision under sub-paragraph (1) shall include provision for services which provide support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders.

(3) For the purposes of this paragraph "young adult offender" means a person who is aged at least 18 but under 21 when convicted."

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:45 pm, 18th December 2012

I listened with care to what was said, particularly on the question of resources. I think that in the circumstances it makes absolute sense for this amendment to go to the other place and to be debated as fully as possible. Therefore, I shall not move this amendment.

Amendment 10 not moved.