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My Lords, debates on the Queen’s Speech inevitably feature ministerial double acts. Today, the event stars the noble Lords, Lord Taylor and Lord McNally. The genre is, of course, a familiar one. We think perhaps of Neil Simon’s “The Odd Couple” or the Geordie comedy “The Likely Lads”, though perhaps
“The Likely Lords” would be a more appropriate description. The latest example is the new comedy series “Vicious”, although I would not for a moment suggest that that is an appropriate adjective to describe two highly congenial and respected Ministers, and in any case I cannot quite decide which would be Ian McKellen and which would be Derek Jacobi.
My responsibilities as a shadow Minister are limited to justice matters, but in a debate ranging across crime, justice, equalities and constitutional issues I will inevitably touch on some matters beyond my normal brief.
I start with constitutional issues and especially those that concern Parliament as a whole and your Lordships’ House in particular. In so doing, I commend the noble Baroness, Lady Hayman, for her intention to bring forward the Bill to which she has just referred. Last Wednesday, the Select Committee on the Constitution published a report entitled The Pre-emption of Parliament. The report deals with the tendency of the Government to pre-empt legislation or, in a phrase that I coined with regard to the Public Bodies Bill, to engage in pre-legislative implementation, as opposed to the established concept of pre-legislative scrutiny and post-legislative review. The report asserts that,
“the principle of restraint in the name of good constitutional practice should apply to all pre-emptive actions, not just those involving expenditure under the new service rules. This recommendation particularly applies to re-organisations of public bodies”.
The report concluded with an emphatic injunction:
“Where the pre-emption involved is such that it threatens effective parliamentary scrutiny, it should not be undertaken. It is for Parliament, not the Government, to decide whether to change the law”.
I ask the Minister when the Government will respond to this report and the recommendations that it contains, and, if it is at all possible, to give an indication of their thinking today.
However, there are other aspects of the way that the Government deal with legislation which arouse concerns across the House. The committee of the noble Lord, Lord Goodlad, reported recently on the Government’s approach to consultation and was critical of the shortened timescales that they too often impose. Frequently, moreover, we receive details of the response to consultation and, in turn, the Government’s response to the outcome of consultation at a very late stage in the legislative process. Proposed statutory guidance or draft regulations are all too often simply not available at all in time to be taken into account as we scrutinise the legislation. In these circumstances, neither House is able to discharge its responsibility to scrutinise and improve legislation properly.
We are already seeing the sour fruits of this approach in a number of areas—not least, relevant to today’s debate, in relation to the Legal Aid, Sentencing and Punishment of Offenders Act and the Crime and Courts Act. The president of the Family Division has proclaimed that the courts are “wholly unprepared” for the changes now being implemented. The Government are pressing ahead, as we learnt today, with the privatisation of much of the work of the probation service and the introduction of a payment-by-results system. Not only have they cancelled the two pilot schemes they were running, in Staffordshire in the
West Midlands and in Wales, they have even refused a Freedom of Information Act request made by colleagues in the House of Commons that sought information on the evaluation of the schemes. Can the Minister explain those curious decisions?
While welcoming the Government’s intention to reduce reoffending rates and to offer supervision to ex-offenders released after short sentences, we will wish to examine carefully—as will your Lordships’ House as a whole—the details of the proposals, their practicality and their impact on the probation service. I echo the concerns expressed by the noble Baroness, Lady Howe, and the noble Lord, Lord Marks, on these matters. Time and again, after all, the Government have charged ahead with ill-thought-out measures that have caused huge problems and cost large sums of money. The fiasco of the new court interpreter system, the process of issuing all civil monetary claims from a single court, the outsourcing of court security—that paragon of efficiency, G4S, apparently pays its staff £6.45 an hour but is itself paid £11.49 an hour for the hours worked by its staff, and makes a gross profit of £42 million a year—all testify to that ideological obsession with outsourcing to which the right reverend Prelate the Bishop of Lichfield referred this morning.
I will, however, commend the Lord Chancellor on at least one recent decision, which is to set up a review of the Court of Protection, about which I have voiced doubts on a number of occasions. It needs a root-and-branch examination, and I look forward to the outcome of that. Equally, I welcome what I take to be the Government’s intention to proceed with the equal marriage Bill, and I support those, such as the noble Lord, Lord Fowler, who made a remarkable speech this morning, on what he said about the Bill. Too often, it seems to me, the Lord Chancellor indulges in the politics of the dog whistle—a tendency that will no doubt become more evident as the UKIP pack snaps at the Tories’ electoral heels. It is interesting that his recent announcement on prisoner privileges, uniforms and the like, affect privately run prisons more than publicly run ones.
However, it is in the fields of legal aid and litigation that the most profound damage is threatened to our system of justice and of access to it. It is extraordinary that one of the main justifications advanced for the changes which will deprive 650,000 claimants a year of legal advice or legal aid is that the scheme has changed over the past 65 years to cover more areas of law, although, as it happens, a smaller proportion of the population. Would the same argument be advanced to justify cutting the National Health Service where more treatments become available, or any of the other areas of public policy where needs change as society, the economy, technology or the environment change? We will continue to scrutinise and challenge the regulations still to be made to implement the LASPO changes, and we look forward to the Low commission’s report on the effect of the changes and the cost to the court system. Both in this context and in relation to criminal legal aid, to which I now turn, we will look for alternative savings across the whole system which will not imperil access to justice.
The Government’s proposals on criminal legal aid rely yet again on the discredited tendering system which has given us Atos, Group 4, the interpreter fiasco, and more besides. But these proposals are even worse because, as the noble Lord, Lord Thomas, pointed out, those who qualify for legal aid will have no choice of representative. A mere 400 firms will be given contracts and clients will be allocated to them apparently on a crude rotation basis. Fees for both barristers and solicitors will be cut by at least 30% and 17.5% respectively from in most cases a low base which, of course, includes substantial overheads. The criminal Bar in particular will be very hard hit, but the real damage will be done to the client and the courts as well as to the practitioners. Nor do the Government’s sums add up. They claim a saving of £220 million a year but their estimate shows only £118 million a year by 2016-17. As that is the product of the cut in fees the tendering exercise appears to make no difference. The proposed savings on prison law will save all of £4 million allegedly, and Answers to Parliamentary Questions tabled by colleagues in the House of Commons have established that there is no estimate of the savings to flow from the proposed 12-month residency test, or even how much is now spent on legal aid for foreigners. It is all just another blast on the dog whistle.
Astonishingly, the Government have just produced a series of amendments to their own consultation document, several of which modify the original claimed savings. One of them corrects a figure given at paragraph 5.3 on page 72 of the consultation document for the costs of very high value cases from £592 million to £92 million, a reduction of 84%. If only the Chancellor of the Exchequer could amend the OBR figures in the same way. We await with interest the outcome of this amended consultation and the Government’s response, which on past form will probably largely ignore it.
Even the Daily Telegraph ran a piece by one of its feature writers proclaiming that it is the end of the legal system as we know it. I am pleased that the noble Lords, Lord Marks and Lord Thomas, and the noble Baroness, Lady Deech, have voiced serious concerns about the Government’s proposals. I hope that they will join with us in challenging them if, as I assume, secondary legislation and regulations will be brought to this House for approval.
Change is not limited to the criminal law. At the behest of its generous friends in the insurance industry the Tory party—with, apparently, its Liberal Democrat partners once again colluding with it—is embarking on radical changes to civil justice, extending the scope of small claim courts and imposing a rigorous cost regime which will make it uneconomic for practitioners to undertake the work given the need for relevant expertise to be deployed. Coupled with the LASPO changes, significant roadblocks are being placed on access to civil justice, based in part on the myth sedulously fostered by insurance companies of a compensation culture, a notion recently dismissed out of hand by Lord Dyson, the newly appointed Master of the Rolls.
There are also deep concerns about the future of judicial review, an essential tool in holding government and public bodies to account. The Government claim that only a tiny percentage of claims are successful. In fact, a significant number of cases are settled in the claimant’s favour before the stage of judicial permission to proceed. Of those which do proceed to hearing, again a substantial proportion is successful. Lord Dyson has said:
“There is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.
The noble and learned Lord, Lord Woolf, has stated, “Judicial review is critical” and that the Ministry of Justice,
“is showing a remarkable lack of concern for the precision of the facts”.
What answer does the Minister make to those remarks of the eminent judges who have pronounced upon the Government’s policy?
Unfortunately, we now seem constantly to denigrate the human rights legislation which it was once our proud boast as a nation to promote at home and abroad. We appear much keener to sell access to British justice to wealthy foreigners than to secure it for our own citizens.
The grayling, I understand, is a protected species of the salmon family, which apparently provides thrilling sport when the trout season is at an end. If the noble Lord, Lord Lee of Trafford, who is apparently a keen angler, was in his place now, as he was this morning, he would no doubt confirm the description of the fish. For our part, we do not regard the Lord Chancellor as a protected species, nor will we treat opposition to his destructive policies as a sport, thrilling or otherwise. Our concern on these Benches—and I think the concern of many across your Lordships’ House—is to protect the enduring values of our legal system and to preserve access to justice for all who need it, while of course striving to do so as efficiently, effectively and economically as possible.