House of Lords
Thursday, 19 May 2011.
Prayers—read by the Lord Bishop of Chester.
My Lords, the Government recognise that the vast majority of parents in this country understand their responsibilities and take them very seriously. They are doing a good job in bringing up their children. It is not government’s role to tell parents how to raise their children. The state already has clear powers to intervene where parents fail in the care of their children and we have no plans to add to the legislation on this issue.
I am grateful to the noble Lord for that reply. I was particularly interested in the latter part of what he said—what one might call the no-nanny-state argument. It seems to me that the Government are on the horns of a dilemma. As I understand it, it is their policy to increase equality and social mobility. In February, we had two debates on the importance of early parenting in which speaker after speaker emphasised the importance of early parenting in enabling a child to succeed in school and in life. How do the Government plan to ensure as far as possible that parents understand and know the needs of their children, even if they—the parents—did not have a happy home life? Are the Government prepared to make it clear to parents that they are responsible for providing the parenting their children need, or at least to raise the issue?
My Lords, I am extremely aware that few noble Lords in this House have done more than the noble Lord, Lord Northbourne, to champion the case for parenting, and there is broad agreement in this House about the importance of it. The noble Lord asked whether we have plans to specify parental responsibilities through more legislation, perhaps in the way that it has been done in Scotland. The answer is that we do not. Our view is that the Children Act 1989 sets out a very clear framework and having a new definition of responsibilities could complicate that. I am not sure that setting a declaratory definition would help. Most parents know what it is to be a parent and perform their role well. I am not sure that those who do not would be helped by something written down on a piece of paper. The priority is to give practical help to those parents, which I think all sides of the House agree is an important job.
Does the Minister agree that it is not the job of the state to do the job of parents? Rather than definition, surely we need action. Action was promised in the coalition document, but action there has been none. What will the Government do in terms of fiscal incentives and general improvements in the context within which parents can bring up loving families?
I am glad that the noble Lord agrees that there is no need for more definition around this. In terms of practical steps that have been taken, I disagree that the Government have done nothing. A range of steps have been taken including extending free nursery care for two year-olds to disadvantaged families, extending the offer to three and four year-olds, doubling the number of people working in family-nurse partnerships and increasing the number of family health visitors, so a number of practical steps have been taken. Clearly there are families in which parents have problems in performing their duties properly. There are lessons we can learn from the extremely important and valuable work of the previous Government with family intervention projects, which we can try to extend.
My Lords, the question of what those economic incentives might be is clearly a matter for my friends at the Treasury. I am sure that the Chancellor of the Exchequer will consider any proposals there might be for such incentives and bring them forward at the appropriate time.
My Lords, international surveys of child happiness show the experience of childhood in this country not to be as positive as in many other countries, particularly in Europe. Therefore, I wonder whether there is not at least some case for codifying the proper expectations of a child in relation to parenthood, as has been the case, for example, in the Napoleonic Code in France for many years. Is there a case not for the nanny state but for some codification that might help the process of personal and social education in schools?
To revert to my earlier answer, I am not convinced of the need for a codification. I do not know how one would set about it or, in practical terms, the benefits it might bring. The priority should be to focus on and to help those families who most need help, rather than to draw up an approach for all parents and families, as I am not aware that there is a particular problem in most families and with most parents.
My Lords, does the Minister agree that one of the most successful initiatives designed to help parents to understand their responsibilities was the introduction of Sure Start centres? Is he concerned about the level of cuts being imposed by cash-strapped local authorities, which is estimated to be around 22 per cent in real terms? Will his department reconsider its decision not to ring-fence the Sure Start centre grant?
My Lords, I agree with the noble Baroness, Lady Jones of Whitchurch, about the contribution that Sure Start centres make. Other initiatives, such as the family intervention project, pioneered by the previous Government, achieved a lot and we can learn from that. I agree about the importance of Sure Start centres. There is a difference of opinion between us about the degree of local discretion and autonomy that one allows, which is why we have removed the ring-fence. We have put enough money into the early intervention grant to maintain a universal network of Sure Start centres, which is what we want to do.
My Lords, given the strong evidence showing the adverse impact on children who are exposed to high levels of damaging parental conflict, as so clearly highlighted by the Kids in the Middle campaign, what plans do the Government have to help parents to understand and meet their responsibilities to children when relationships break down?
Education: Bahraini Students
My Lords, we urge the Government of Bahrain to meet all their human rights obligations and to uphold political freedoms, equal access to justice and the rule of law. The British Government are aware of allegations about the Bahraini Government’s actions towards some Bahraini students studying in the United Kingdom. These are clearly of considerable concern. Our ambassador in Bahrain raised the issue with the Bahraini Minister of Justice on 4 May, saying that it was wrong for students to be punished for exercising a right to peaceful demonstration, as recognised by the International Covenant on Civil and Political Rights. We will continue to make our concerns clear to the Bahraini authorities.
My Lords, has my noble friend actually made representations to the Bahraini authorities that they should restore the grants to these particular students, who will otherwise be left destitute in this country? Does he think that these students are likely to obey the summons to return to their country when, this morning, the court sentenced demonstrators to 20 years’ imprisonment?
We have certainly made representations along those lines, in very strong terms. I could not speculate on what kind of result the pressures will have, but we have made the point that students are free to carry on activities here as long as they do not commit a criminal offence. That is the law and we have made the situation absolutely clear to the Bahraini authorities.
My Lords, is the Minister aware that MINAB—the Mosques and Imams National Advisory Board—has expressed deep concerns about the Bahraini authorities’ demolition of 10 Shia mosques? As a Sunni, I hope that Her Majesty’s Government will make representations to the Bahraini Government asking them to refrain from demolishing places of worship.
Yes, we certainly will do so—and may well have done so already. I appreciate very much the insights of the noble Lord, as he understands the tensions, difficulties and divisions of this situation. In addition to making representations—which of course is not good enough unless one gets results—we have noted that the authorities in Bahrain have agreed to lift the state of emergency and to accelerate investigations into deaths in detention, and they have invited in the UN to investigate abuses at the Salmaniya hospital. That goes beyond the question of mosque demolition, but it indicates that we have the sustained pressure and that we might be getting some progress. However, there is a long way to go before we move to the dialogue that we want to see the Bahraini authorities organise in their country.
My Lords, is my noble friend aware that in addition to the sanctions against the students here in the UK—who, as he said, were exercising the democratic right to protest peacefully that is available to them here—their families have been arrested, locked up and told that they will not be released until the students stop protesting and opposing the regime? Can my noble friend tell the House whether the UN and other international bodies working on this Bahraini impasse would consider appointing an envoy to go to Bahrain and investigate these abuses?
I have not had reports this morning about the first point that my noble friend raised, but obviously there is concern in all the international bodies about what has been happening. As I have said, we have urged the Government of Bahrain to create the environment in which a dialogue can take place. This is the pressure being put on the Bahraini authorities at the moment and we intend to pursue it. The issue of taking wider action at the UN has not arisen and, at the moment, there is no sign of organised support for any movement of that kind. But, obviously, these matters are always in our minds.
My Lords, does the Minister agree that the situation in Bahrain is very complex and different from a lot of the other centres of unrest that we are witnessing in the Middle East, not least because of the problems alluded to by my noble friend? There is the Shia-Sunni conflict, the problem of outside influences and, indeed, tensions within the Bahraini Government themselves. Would the Minister consider chairing a meeting of those of us who are interested in Bahraini issues so that we might have an opportunity to discuss some of these issues in perhaps greater detail, perhaps with some briefing as well from the Foreign Office? I think that that would be immensely helpful and I would be grateful if the noble Lord would consider doing it.
I am very surprised that my noble friend is striking a discordant note, but he makes the perfectly serious point that we cannot resolve every issue in every corner of the earth. However, there are our interests—and our interests happen to be rather acute in this very sensitive area of the Middle East, where not only does one of our major allies have a huge fleet and we have our contact and communications operations for trying to control the piracy that is a direct affront to our interests, our shipping and our prosperity, but there are many other British interests as well. I think that we are entitled to look after our interests in a reasonable way without—my noble friend is quite right—interfering in every conceivable situation.
EU: Transfer of Iranian Refugees
To ask Her Majesty’s Government what is their response to a proposal from a European Parliament delegation to Iraq that the European Union Council of Ministers and European Commission seek international support for the voluntary transfer of Iranian refugees at Camp Ashraf to European Union member states, the United States and Canada.
My Lords, we are aware of the recent visit to Iraq by the European parliamentary delegation and its proposed solution to the complex challenges that Camp Ashraf presents. Resettlement may represent a way forward, although we do not assess that residents would qualify for resettlement in the UK. Responsibility for Camp Ashraf lies with the Government of Iraq, and we call on all sides to engage in constructive dialogue to reach a lasting solution. We deplore the recent loss of life and injury.
Will the Minister understand that attempts peacefully to resolve the position of Ashraf cannot begin until Iraqi and Iranian forces stop the brutal murder of residents of Ashraf, the wounding of literally hundreds of residents and the use of psychological torture through 280 loudspeakers around the camp perimeter, threatening the lives of those in the camp? Will he now ask the Prime Minister to urge the UN Security Council to take over responsibility for the protection of Ashraf residents, to secure the withdrawal of Iraqi and Iranian forces from the camp and to ensure that the wounded get the treatment and the medical supplies that they need to get better?
As the noble Lord knows very well—indeed, he must be saluted as the campaign leader in this very ugly situation—the UN Assistance Mission for Iraq, UNAMI, has requested that another humanitarian monitoring mission be sent to Ashraf as soon as possible, and we fully support that. The problem, as the noble Lord appreciates, is that this is Iraqi sovereign territory and there are limits to what those of us outside can do. Despite making constant representations, our own visit on 16 March and our deploring of the confirmed killing on 8 April, we cannot intervene in the internal affairs of Iraq without the recognition and support of the Maliki Government, which we need. That is what we must work for all the time and what we back the UN in doing as well.
Did the Minister have the chance to see the speech made by the noble Baroness, Lady Ashton, in the European Parliament on 10 May, where she reiterated the duty to protect which the noble Lord, Lord Corbett, referred to a few moments ago? The noble Lord asked the Minister about the role of the United Nations and the declared doctrine of the duty to protect. Given that, in April, 35 people were killed and 350 were injured, is this merely an internal question for the sovereign Government of Iraq or is it not something that the international community has a duty to be involved in?
It is a matter that should and does concern us all. I am very glad that the noble Baroness, Lady Ashton, has now agreed to take the Ashraf issue on to the agenda at the next European Union Foreign Affairs Council on 23 May. We are moving in that direction.
My Lords, is my noble friend aware that not only are the wounded still not gaining medical supplies but that these people have not even been allowed to bury their dead in their own cemetery? Will he accept that, under the Geneva protocols, these are protected persons? At the risk of offending the noble Lord, Lord Tebbit, again, can I add that international law requires other states to take positive action to protect innocent civilians in these circumstances? Will the international community come together to resettle these people voluntarily, either within Iraq or in other countries?
I referred earlier in my Answer to the noble Lord, Lord Corbett, to the problem about resettlement in different countries. Neither this country nor our neighbouring countries are in a position to resettle these people; they simply do not qualify. On the medical treatment issue, these points have been raised and the UN, again with our support, has stressed the importance of the Iraqi Government co-operating with the camp’s leadership to ensure that residents get the treatment they need. After the dreadful 8 April incident, a number of the injured were transferred to a US hospital and all those have now returned to the camp. The issue of serious medical deprivation and serious medical assistance is very much in our minds and in the minds of the United Nations, and we will continue to watch the situation very carefully. There appear to be some transfers of cases to hospitals in Baghdad and Erbil. The situation is not totally black, but it is very dark indeed.
Does my noble friend agree that this situation has now reached the point where a fresh approach is required if it is ever going to be resolved in a sensible and humanitarian way? Is it not clear that Iraq would like to have this issue settled one way or the other but that it is choosing a route that is resulting in grotesque crimes against the civilian population in Ashraf? Surely the moment has come when the United Nations and the European Union together should take the initiative to find a lasting solution that will satisfactorily rehouse the residents of Ashraf elsewhere out of Iraq?
I certainly hope that that moment will come. The present course of Iraq appears to be that, by means that are not at all acceptable, it can shrink the perimeters of this very large camp. This has led to the kind of horrors we saw on 8 April and so clearly that is the wrong route. I hope that at the meeting of the European Union Foreign Affairs Council, which I have already mentioned, the prospects for redirecting the Government of Iraq into a wiser course and taking broader steps with the support of the European Union will crystallise. That is what I hope will happen.
My Lords, on the protected persons status under the Geneva Convention, is the Minister aware that his colleague, Alistair Burt, wrote to me on 9 May saying that my concerns about this protected persons status were not sustainable because there was no warlike “scenario”, as he described it, in Camp Ashraf? Does the Minister agree that the people who were attacked on 8 April, when the camp was invaded at four o’clock in the morning and resulted in at least 38 people being slaughtered, including eight women, could be forgiven for thinking that it is a warlike situation? Mr Maliki should be told that his freedom in Iraq is there only because of the sacrifice of British and American troops all those years ago.
I agree with the feeling behind the noble Lord’s statement. If the underlying thought of the question was whether these people could be protected by the fourth Geneva Convention, I am afraid the answer, again, is negative; it is not, in the sense recognised by the convention, a war situation. It remains, nevertheless, whatever the lawyers tell us, a very unpleasant situation, and we must all move to see whether we can advance towards a creative solution.
My Lords, the Government recognise the importance of finding the right balance between individual rights to privacy on the one hand and the right to freedom of expression and transparency of official information on the other. The Government will await the report of the Master of the Rolls’ Committee on the use of super-injunctions before deciding on next steps.
I thank my noble friend for his reply. Does he accept that every taxpayer has a direct public interest in the events leading up to the collapse of the Royal Bank of Scotland? So how can it be right for a super-injunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague? If true, it would be a serious breach of corporate governance and not even the Financial Services Authority would be allowed to know about it.
I agree with that and the extent to which one should not use privilege to go against the terms of court orders. To what extent are the Government considering how much the hearings in which super-injunctions or indeed any privacy injunctions are granted are open to the press? One of the problems is that people do not know what the process is. The press are reliable when directed not to disclose what goes on in criminal trials. Why can they not be present when secrecy injunctions or super-injunctions are granted?
Would the noble Lord accept that, of course, the judges take the public interest into account at the moment when deciding whether to grant a super-injunction? Would he also accept, as has been said so often, that the public interest in this connection is not to be equated with what may be of interest to the public?
That goes to the nub of it. Quite clearly, what is of interest to the public can include areas which intrude into private life. Again, we are looking carefully at these matters. The fact that there is so much public discussion and debate means that it has been sensible to get the Master of the Rolls to look at these issues. When we have the full knowledge of his deliberations, we will make statements on steps forward.
Will my noble friend be good enough to tell us how many super-injunctions have been issued and are extant? Hugh Tomlinson QC, the leader in privacy law, tells me that the Ministry of Justice has no idea. Perhaps the Minister would send a runner down to the Royal Courts of Justice and find out exactly how many there are. The Times says 30; other newspapers say 800.
My Lords, is not a right to a private life and respect for privacy an essential, indeed defining, characteristic of a free society? Of course, there must always be an over-ride where there is a connection between private behaviour and the fulfilment of public responsibilities, including voting and speaking in Parliament. In that connection, is it not intolerable that important sections of the media, in pursuit of a commercial agenda in competition for getting more titillating material to increase their sales, think nothing quite regularly of bribing informants, of surreptitious surveillance and photography, of tapping telephones and of using the methods normally associated with the activities of a secret police in a totalitarian society? Is this not a national disgrace and should not Parliament and the Government face up to their responsibilities and legislate on the issue?
I think I was with the noble Lord right to the last bend, there. Of course, in a free society we have to recognise those rights that he has just recognised, but also in a free society we recognise the need for a robust and free press. The noble Lord laid down a catalogue of sins, which throws a challenge to our press. I know that noble Lords on all sides of the House want to defend a free press, but the press has a duty to put its own house in order to see whether some of the faults that the noble Lord outlined should not be more robustly dealt with by the self-regulation that the press claims to be so proud of.
The Bill was brought from the Commons, read a first time and ordered to be printed.
Business of the House
Timing of Debates
Ministerial and other Salaries Act 1975 (Amendment) Order 2011
Export Control (Amendment) (No. 3) Order 2011
Motion to Refer to Grand Committee
European Convention on Human Rights
My Lords, my purpose is to dispel some of the many myths peddled about human rights. In fact it is the Conservative Party, not Labour, that can make the strongest claim to credit for the European convention. Its main proponents were Churchill, Macmillan and John Foster, with some Liberal and Labour support. Its principal author was David Maxwell Fyfe, the future Conservative Chancellor, Viscount Kilmuir. The convention was substantially the work of British jurists within a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689.
Britain became the first state to ratify the convention, on 8 March 1951, yet it was not until December 1965 that the then Government accepted the right of individual petitions to the Commission and the compulsory jurisdiction of the European Court of Human Rights at Strasbourg. Then for a long period, until 1993, both major parties were united in rejecting incorporation of the convention into our domestic law. That in itself was extraordinary, because it meant that our citizens could not argue for their convention rights in our own courts but had to take the long and expensive road to Strasbourg.
Then came the late John Smith’s seminal Charter 88 speech on 1 March 1993, committing Labour in government to incorporate. That translated into a 1997 manifesto commitment, and the Human Rights Act 1998, which began its parliamentary progress in this House, followed. Its purpose was to bring home to be enforceable in our own courts the rights contained in the convention. Our courts are of course closer to the traditions of our society, and through their judgments they can make a distinctive British contribution to the development of Europe-wide human rights laws.
To Conservative critics of the Convention and the Act, I recommend the recent short study by Norman and Oborne, Churchill’s Legacy: The Conservative Case for the Human Rights Act. They detail the history and debunk the myths. They emphasise that,
“A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities”,
and conclude that,
“it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country”.
In Chapter 4, “Dispelling the Myths”, they accuse the media of a culture of deception about the Act since the media believe that they have an interest in its destruction because of its protection of privacy in Article 8:
“Any politician who denounces the HRA, however incorrectly, is generally guaranteed a round of applause from the press”.
They say that a politician who argues the contrary, “tends to get pilloried”.
Among the most controversial recent cases are those where the courts have granted injunctions to prevent the press publishing details of the private lives of celebrities. The Prime Minister himself has entered the fray, on the side of the press. Unsurprisingly, he has secured a good press. He said that the judges were creating a privacy law, whereas what ought to happen in a parliamentary democracy is that Parliament should decide,
“how much protection we want for individuals and how much freedom of the press”.
Essentially, the charge is that the judges are usurping the role of Parliament. This is either ingenuous or disingenuous; your Lordships can decide which.
There are two straightforward answers to the charge. First, the judges are under instruction from Parliament in the HRA to balance the right of respect for the claimant’s private and family life against the right to freedom of expression in Article 12, and of course the judges obey. The scales are weighed in favour of freedom of expression because the Act requires the courts to have particular regard to its importance. No other right is given this privileged status. We should remember that in those cases it is often not only the Article 8 rights of celebrities that are at stake but also those of innocent third parties, including children. There is typically no significant public interest in the disclosure of the peccadilloes of actors, footballers or reality television contestants, although that helps to sell newspapers. A prurient interest does not equate to a legitimate public interest. The weight that the courts give to freedom of expression is strongly illustrated by the recent Strasbourg ruling in Max Mosley’s case in favour of the media.
The second answer to the charge is that the Government could introduce tomorrow a freedom of expression and privacy Bill compatibly with the convention if they took their courage in both hands. Members of the other place would undoubtedly show huge interest in such legislation, equalled no doubt only by the inevitable wrath of the tabloids—so your Lordships should not be in the least surprised if no such legislation is ultimately brought forward. Far easier to go on berating the judges, however unfairly, for doing what Parliament has instructed them to do than to take the knock of legislation oneself.
I should not leave this subject without emphasising that the media have gained greatly from the convention and the Act: enhanced protection for journalistic sources; a dramatic reduction in the level of libel damages; and the right to report on a much wider range of court proceedings. However, I emphasise that when impartial courts hold the balance between privacy and freedom of expression, the media cannot expect to have it all their own way.
I move to another recent controversy—votes for prisoners—where misconceptions also abound. We have clear primary legislation in Section 3 of the Representation of the People Act, which prevents convicted prisoners being registered to vote. No other interpretation of Section 3 is possible. Although Section 3 was declared incompatible with the convention by the courts, voting claims brought by prisoners under the HRA were rejected on the grounds that Section 3 was clear and the sovereignty of Parliament must prevail. All that the European Court held was that our blanket ban should be reconsidered. However, as a result of the HRA, it will be reconsidered in the proper forum: Parliament.
Your Lordships should know that our blanket ban has put us out of step with a clear majority of the other states in the Council of Europe, most of whom, including Germany, France, Italy, the Netherlands, Portugal and Spain, allow some or all of their convicted prisoners to vote. In that context, it is surprising that the Prime Minister went as far as to claim that he felt physically ill at the prospect of giving the vote to prisoners. All that was held at Strasbourg was that the blanket ban was disproportionate because it applied irrespective of the length of the sentence or the gravity of the offence, and without regard to whether the prisoner had completed that part of the sentence relating to deterrence and punishment. At any rate, it is now up to Parliament, which will want to consider whether some opportunity to participate in democratic elections could help prisoners’ restoration to the mainstream of society.
Another example is the sex offenders register, a subject on which the Prime Minister and his Home Secretary have become so choleric that your Lordships should worry for their peace of mind. The antidote that I would prescribe is a strong dose of rationality. The Supreme Court recently considered statutory provisions that imposed on certain sex offenders lifelong notification obligations to inform the police of their whereabouts or foreign travel plans. The basic point was that they could not even apply for their names to be removed from the register, regardless of the rehabilitation that they might have achieved over many years. The Supreme Court made a declaration that the provisions were incompatible with the convention in the absence of a procedure that allowed an individual to apply to be taken off the register. It would be for Parliament to determine the criteria for success, when an application could first be made and who would decide. Alternatively, the Government are free, under the Act, to do precisely nothing, wait to see if it is taken to the Strasbourg court, and argue there why any review would always and for ever be inappropriate.
The Prime Minister and his Home Secretary joined in telling Parliament how appalled they were by the decision, with the Prime Minister adding that the decision was completely offensive and flew in the face of common sense, while the Home Secretary questioned its sanity. However, all that the judges were doing was applying the law. Surely, this intemperateness must stop. Respect for the rule of law underpins our democracy. That respect is not a commodity to be marketed away for perceived short-term political advantage. When it is, Ministers undermine respect for the rule of law and diminish both themselves and our democracy.
I greatly look forward to the reply of the noble Lord, Lord McNally, to this debate. On 18 March, the Ministry of Justice announced the establishment of an independent commission to investigate the case for a UK Bill of Rights. Its terms of reference follow the language of the coalition agreement—namely,
“to investigate the creation of a British Bill of Rights that incorporates … all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.
So, the European Convention will continue to be a guaranteed floor, but not a ceiling, for the protection of human rights in Britain. I congratulate the noble Lord’s party on these terms of reference. The commission provides an excellent opportunity for his party to put—if this is the correct expression—clear blue water between themselves and their coalition partner. I invite him to take this opportunity to confirm that the continued incorporation of the European convention rights into our domestic law is non-negotiable. I beg to move.
My Lords, I shall look forward to that intervention.
I begin by expressing my gratitude to the noble and learned Lord for giving us the opportunity to debate this topical and extremely important subject. Unfashionable though it may be, I remain glad that our country has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is not often recalled—I was very glad to hear the noble and learned Lord do so a few moments ago—that we did so by one of the first acts of Sir Winston Churchill’s second Administration. We were the first of the member states of the Council of Europe to do so.
Like many of your Lordships, I am old enough to recall, and to have shared in, the surge of international idealism that flowed from the full realisation of the horrors that had been experienced in the recently concluded world war, and which had been inflicted on human beings before and during it. Those horrors had been inflicted by tyrants upon victims in a Europe that had lacked the political will to formulate, let alone enforce, any statement of their basic rights as human individuals. On all sides the determination was “never again”. So uncontroversial was the new convention, that to the best of my knowledge its ratification was never debated in Parliament. Though we became one of 12, our particular participation as a country was, I believe, to offer oppressed people elsewhere in Europe and beyond a beacon of hope and faith. From it they took heart and strength.
More controversially, however, I am also glad, though more critically, that 60 years later we remain bound by the convention, and that the coalition Government have declared that we shall continue to be so bound. That is not to say that there is not an urgent need for reform. In 60 years there have evolved, in large part with the consent of the member states, very significant changes to structures and jurisdiction. Whereas initially there was no court but only a Commission and a Council of Ministers, now the Strasbourg Court is at the heart of the convention, and, it must be said, at the centre of its problems. There is, for example, the horrifying and absurd backlog of applications to the court. Perhaps predominantly, there is the popular conception, which some of the court’s decisions have allowed to develop, that its decisions are typically out of touch with reality and with what is sensible. It is very damaging, surely, that this development should have led an authority of the stature of the noble and learned Lord, Lord Hoffmann, the former Law Lord, to be reported as saying that
“human rights have become, like health and safety, a byword for foolish decisions by courts and administrators”.
He has written that,
“the Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe”.
The Justice Minister, on behalf of the Government, has endorsed—though more gently—the thrust of that criticism. I think that there is much of which complaint in a similar vein can be made in the development by the court of its own jurisprudence. But it has been unfair in the main. Here I very gladly follow what the noble and learned Lord has just said. It has been unfair to attach that criticism to our own judges, who are obliged under the Human Rights Act 1998 to “keep pace with” the jurisprudence of Strasbourg.
It is not therefore wholly apt—to put it mildly—merely to assert that human rights should be determined by Parliament, not by judges. Whatever the words employed by Parliament, it will always fall to the judges to interpret and apply them to each individual case that comes before them.
Nevertheless, something must be done, and it is easy to understand how impatience can give rise to the answer, “Have done with the convention and all its works. Renounce it and make a fresh start”.
I believe that such a course would be an act of almost wanton destruction. Just as the convention itself derived from international determination to remedy for individuals the absence of legal protection against tyrannical abuse, so its renunciation by this country, of all countries, would tragically undermine the valiant efforts of protestors everywhere to secure basic rights and freedoms for themselves. That would be hard to forgive.
The wiser course, surely, is that now adopted by the coalition Government: the appointment of the commission in March to investigate the creation of a UK Bill of Rights that incorporates and builds on our obligations under the ECHR, ensures that those rights continue to be enshrined in UK domestic law and protects and extends our liberties.
It has been our destiny to be, for oppressed millions, a beacon of hope and faith. We can and must remain true to that destiny.
I would remind noble Lords—and my noble and learned friend was admirably within time—that this is a time-limited debate. When the clock hits seven, noble Lords have completed their seven minutes. We also have a noble Lord who wishes to speak in the gap.
My Lords, I congratulate my friend of many years, my noble and learned friend Lord Irvine, on the presentation that he has made today and on the call for these papers on human rights to be brought forward. There could not be a more appropriate time than now to raise this particular issue. The role of human rights and the protection of private interest and public interest, as embodied in the European Convention on Human rights, were not challenged for a number of years but that has not been the case over the past five years. Clearly there is a fundamental challenge under way. The Minister of Justice in the other place has now admitted that the Government are looking at how they might change human rights legislation. We will have the presidency under the Council of Europe perhaps to do some of that. We look forward to the debate and the conclusions of the Government.
I should perhaps declare an interest, as the leader of the Labour group in the Council of Europe, leading a delegation from these two Houses. We have been concerned about the reforms that are necessary in human rights legislation. We made recommendations 10 years ago about the length of time taken for cases and about other matters. There is a need for reform, as has been said in this House on a number of occasions. However, I say to my noble and learned friend Lord Irvine that our debates in 1997 which he led in this House made a compromise that has not helped the situation. I refer to the role of the press complaints body that deals with some of the obligations of the press in observing public and private interests. We made a rod for our backs by not making public bodies accountable regarding the Council of Europe and human rights obligations. We exempted the Press Complaints Commission from that. If we did not have a body that claimed the right to be self-regulatory, we would be able to bring standards and provide advice to editors when dealing with these cases. The point that I want to make today is that in referring newspapers to another body for further discussion, the role of the Press Complaints Commission should be considered.
I attended the other place when it discussed the right of prisoners to vote. That was not a simple issue, and the Government recognised that the House should decide on whether there should be a vote for everyone or whether there should be an area of discretion or appreciation. We can decide on whether the right should be limited depending on how long a person is in prison and the offences involved. The House was not denied the opportunity to make that decision—and many other Parliaments have done that. Only three have said that they are not prepared to accept the ruling. However, the issue behind the debate in the Commons was about getting out of Europe. Those who wanted that did not distinguish between the Council of Europe or the European Union. They wanted to get out of those bodies. They said that Parliament should be the supreme body for legislation. They were same people who voted for us to join the European Union—and I voted against it in 1972. What gives them the right to override the supremacy of those bodies? The Lisbon treaty again makes that clear. We recognise that that is something that already happens to our legislation. The debate was really about how you get out.
I also heard during that debate that judges are ignorant, they are from foreign countries, and they are not elected. I have to say that I am one of the people who elected the judges to the European court. I do not know what the press will make of that, but nevertheless we were involved in exercising that democratic right through our delegation.
The other example was the Max Moseley case, in which our courts—our courts—under our legislation actually said that there was a breach of privacy that was relevant, if you like, to Articles 8 and 10 of the Council of Europe convention, and found a balance in that. Moseley went to the Europe court to seek a ruling on notification—that a person should be told in advance of publication. When I hear the Press Complaints Commission saying that we have a right to notification, we all know what that means. There is a call at 5 pm on a Saturday night saying, “We’ve got this story. Do you want to comment?”. They do not give you notification, and if you can afford to sue them, they do not give you notification, because they know you might go to the court. That is precisely what Moseley did. I can see what is involved in all this talk about rich people getting that right, but an awful lot of people cannot afford it. Why? It is because the press is made up of powerful rich bodies that prevent you taking any action under our legal system.
It is interesting to note that our press praised the common sense of the judges who rejected Moseley’s application for notification, but they condemned the same judges over the issue of prisoners. All of a sudden, those judges became well informed and wise. Frankly, that is all we can expect from our press. I am not a fan. Even the recent super-injunctions are sought under our law, not the European court’s law. I will not go into those arguments. I can see why people are getting increasingly concerned about them. I must say that I am not excited by the idea that some footballer can say, “Publication might affect my sponsorship money”. That is not about human rights; it is about commercial interests, which is the motivation of most of these injunctions. So there is this kind of anti-European dimension, which is not at all helpful.
I come to the point that I really wanted to make in this debate. I think we agree that Articles 8 and 10, which identify these rights, are rights in our constitution and in the European legislation. As the noble and learned Lord, Lord Hoffmann, pointed out in a debate in this House on defamation, the American system provides no rights for people or celebrities. There is just media freedom. That is what the press here is after. There is a clash between what we might call the European tradition and the American tradition. The American tradition hands over the freedom to the press. We have to decide here whether we have in legislation protection for individuals or a balance between the public interest and freedom of speech and indeed freedom of the individual. We will do that in legislation and we will do it in the consultation. However, I am worried about the Press Complaints Commission believing that somehow it can rule on that. In many cases the PCC ignored the Information Commissioner, who said that thousands of pieces of information were being obtained illegally and that thousands of pounds were being paid by hundreds of journalists. The PCC did nothing about it. It totally ignored that in the hacking inquiry. The Culture, Media and Sport Select Committee said that the inquiry was “simplistic”. It did nothing other than mouth the arguments of the press. Indeed, the chair of the PCC was found for a libellous statement in that very case. It is not very good for the chair to be accused of putting out unfair information.
Therefore, we need to look at the Press Complaints Commission. It was left out of the legislation but I hope that it will be covered by it. The noble and learned Lord, Lord Hoffmann, tried to seek out the essential issues, as did the noble Lord, Lord Lester, in his Defamation Bill. We should ensure that this whole matter is covered by legislation. I am not necessarily talking about statutory control but about the need for a body which is independent, accountable and answerable and which is concerned about the private individual, not just the editors who control them on their editorial board.
My Lords, the introduction of the Bill of Rights into Hong Kong in 1991 towards the end of British government put into effect the International Covenant on Civil and Political Rights in that territory. It was a Conservative Government who introduced it and, with the aid of the noble Lord, Lord Wilson of Tillyorn, and later the noble Lord, Lord Patten, negotiated that the Bill should be enshrined in the basic law which now applies to Hong Kong.
That Bill of Rights remains as a bulwark of the right to life, to freedom of expression, assembly and religion, the right to equality and to the presumption of innocence, the right to property and to privacy, a right to travel, and a prohibition against arbitrary arrest, detention, imprisonment, search and seizure. I mention these matters because you have only to go a few miles over the border to see what it is like to live in a country where no such rights are enshrined in the constitution or, if they are, they are not put into effect. It is a stark contrast with what happened in Hong Kong.
The Bill of Rights in Hong Kong in its original form gave the courts the power to strike down any law that was incompatible with those rights. The Privy Council here in the case of Lee Kwong-kut in 1993, in which I was involved, tested that power in relation to a criminal charge where the burden of proof had been reversed. The noble and learned Lord, Lord Woolf, who gave the judgment in that case, concluded:
“The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and will be debased in the eyes of the public ... It must be remembered that questions of policy remain primarily the responsibility of the legislature”.
The Labour Government, led by the noble and learned Lord, Lord Irvine, and possibly in the light of that 1993 judgment, were less ambitious than their predecessor. The remedy for a breach of the European Convention on Human Rights under the 1998 Act, as the noble and learned Lord has already said, is merely a declaration of incompatibility, and it is left to Parliament to remedy the defect that the court demonstrates.
We have yet to consider the legislative reaction of this Government to the decision of our Supreme Court in the case of F in April 2010, to which the noble and learned Lord, Lord Irvine, has already referred. When a Statement was recently made by the Home Secretary and repeated in this House, I said that I was shamed by the language used. The noble and learned Lord has referred to the Home Secretary using expressions such as “disappointed and appalled” and to the Prime Minister finding the judgment “offensive” and questioning the sanity of the court.
We have not heard any more about that. The issue was whether a person could have the right to apply to remove his name from the sex offenders register and not have to give notice of wherever he happened to be in the world. Perhaps it is now realised that the solution put forward by the Home Secretary—that it should be left to the discretion of a policeman to revoke the order of a court—has not been further advanced because clearly it would not survive scrutiny.
I concur with the wise words of the noble and learned Lords, Lord Irvine and Lord Mayhew, about current criticism of the European convention. I will deal with the beneficial effect of the incorporation of the convention by illustrating the changes that have taken place in courts martial, largely as a result of the work of Gilbert Blades and John Mackenzie, who took a highly unsatisfactory system of courts martial to be examined by the European court. I was surprised two weeks ago to be approached by a senior judge advocate who praised the reforms to the system that had been caused by the application of the European convention. I thought that he might have been one of those crusty old judges, but he was not.
The court martial system was challenged in the European court by Corporal Findlay in 1996. The soldier had pleaded guilty at his original trial, but complained that the system whereby the convening officer appointed the members of the court and the prosecutor, directed the charges and then, post trial, became the confirming officer, was not independent. The European court upheld his complaint, which was the catalyst for the Armed Forces Act 1996. Parliament passed the Act, which set up an independent Army prosecuting authority with prosecuting officers who were drawn from professionally qualified lawyers and were independent of the chain of command. Further cases followed in the European Court that led to other changes. Some noble Lords may recall that it led to the ending of the practice in naval courts martial where the defendant was pushed in at the point of a cutlass.
The Armed Forces Act 2006 created a single tri-service prosecuting authority, known as the Service Prosecuting Authority, under the leadership of an independent director of service prosecutions. There was opposition. When I proposed that the pool for the panel should be widened, a noble and gallant Lord said to me in the corridor on the way to the Bishops’ Bar: “You should be shot”. The first DSP is Bruce Houlder, a civilian Queen's Counsel. He has introduced further excellent changes that make the system the envy of military courts in other jurisdictions, as I found out last month at an international seminar at Yale University. That is the way in which the European convention has changed the military justice system so much for the better. It is no longer a case of “march the guilty bastard in”, but a court that gives justice to the defendant.
I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government—next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country.
My Lords, as the noble Lord, Lord Thomas of Gresford, said, the enactment of the Human Rights Act 1998 was due in very substantial part to the ministerial and parliamentary skills of the noble and learned Lord, Lord Irvine of Lairg. It was due also to the persistent advocacy of the noble Lord, Lord Lester of Herne Hill. I pay tribute to both of them for their remarkable achievement. I also thank the noble and learned Lord for giving us this valuable opportunity to remind ourselves—and, I hope, the Government—of some basic principles that may have been forgotten during recent controversies.
I will make two points. First, I will address the suggestion made by many Members of Parliament that judges simply have no business involving themselves in matters of policy such as votes for prisoners or the notification requirements for sex offenders; these are, they suggest, matters for Parliament to decide. What those MPs fail to understand is that one of the central purposes of human rights law is to protect the interests of those sections of the community who lack political power, who Parliament has failed to protect against unfair treatment by the majority. The great cases of the past 30 years in which judgments of the European Court of Human Rights in Strasbourg persuaded Parliament to change the law of this country arose precisely because Parliament and the Executive failed to secure a fair balance in the treatment of persons who did not have the support of MPs and the press.
I declare an interest as an advocate involved in some of these cases, sometimes for the United Kingdom Government, sometimes for applicants—cases such as those concerning gay men and women who were excluded, entirely unreasonably, from military service; children subjected to corporal punishment; the refusal to recognise basic rights for transsexuals; and the prohibition of the involvement of politicians in the setting of tariffs for murderers. These unfair laws, and many more of them, were simply not addressed by Parliament until the European court identified the unfair treatment. This is quite simply a better country because of the judgments of the European court in such cases. Indeed, it also needs to be emphasised, as the noble and learned Lord, Lord Irvine of Lairg, did emphasise, that Parliament remained sovereign on all these issues, but it was the judgment of the European Court that persuaded Parliament that it was time to change our law.
That is not to say that I agree with all the judgments of the Strasbourg court. Who would? The court gave 1,500 judgments last year alone. I entirely agree with the noble Lord, Lord Prescott, about the urgent need for reform of the procedures of the Strasbourg court, not least to address the unacceptable delays. I would also like to see the European court recognise that, now that our judges apply the Human Rights Act, Strasbourg should give greater weight to the views of our distinguished Supreme Court judges when it is deciding difficult issues. The noble and learned Lord, Lord Mayhew of Twysden, made this point very forcefully.
The other matter that I want to address, like some other noble Lords who have already spoken, is the quite extraordinary conduct of the Prime Minister and the Home Secretary in March when they stated that they were appalled by a judgment of the Supreme Court given in April 2010 in relation to sex offenders. The noble and learned Lord, Lord Irvine of Lairg, referred to this matter, as did the noble Lord, Lord Thomas of Gresford. Many lawyers and judges are appalled not by the Supreme Court judgment but that the Government should think it appropriate to use such language in relation to a judicial decision. In each and every Government of the past 40 years there have been tensions between Ministers and the courts. The noble and learned Lord, Lord Woolf, who acted as Treasury Counsel in the 1970s, wrote:
“When I die there may be found burnt on my heart the names Laker, Congreve, Tameside and Crossman just to name a few of my defeats when acting for the Government”.
All Crown counsel since then could make a similar statement. I have represented in court most of the Home Secretaries who have served during the past 20 years and I have the scars to prove it. Some of them were more tolerant of legal setbacks than others, but the wise ones understood that those countries in which the Government win all their cases in court are not places in which any of us would wish to live. The Government and Parliament are of course entitled to disagree with a Supreme Court judgment or a ruling by the European court on human rights issues, but Ministers have a responsibility to encourage reasoned debate and not to shout out abuse and insults which undermine the rule of law.
Difficult though it is for the public to understand this principle, and tempting though it is for politicians to try to win support by fighting a battle of Parliament Square against the Supreme Court, the current Administration need to be reminded that there are many issues where the dispassionate assessment of public policy by an independent judiciary, and by a reference to standards of fairness and proportionality, serve a valuable public purpose.
My Lords, I, too, welcome the opportunity to participate in this debate and thank the noble and learned Lord, Lord Irvine, for initiating it. The tradition of human rights legislation was forged, as other noble Lords have said, in the mid-20th century as a consequence of the experience of the depth of humanity’s inhumanity. Human rights legislation has its very roots in Europe’s Christian heritage and embodies the church’s teaching on the moral significance of every person. We may say, therefore, that the ECHR is one of the remedies against history repeating itself. Recent experience in the Balkans should warn us that totalitarianism is not so distant that it can be treated as a thing of the past in Europe.
The term “human rights” finds its first usage in the Middle Ages. However, from the very earliest laws, such as the code of Shulgi in Mesopotamia, the need to establish dignity and justice was recognised. The king of Lagash in 2094 BCE promised the native god that,
“he would never subjugate the orphan and widow to the powerful”,
“surrender the man with one lamb to the man with one bullock”.
The king concludes,
“I did not demand work, I made hate, violence and the clamour for justice disappear. I established justice in the country”.
One might say that the objective of human rights is to end hatred, violence and the clamour for justice, but what is noticeable about the role of the king is that he acted as a mediator between gods and humans, and his legitimation came from “above”. Today, much human rights legislation is compatible with Christian theology and some would argue—I would include myself among them—that they require a concept of the divine if they are to be coherent.
We may illustrate the danger of a wholly secular approach with reference to the Enlightenment. Towards the end of the 18th century, the philosophers, Hegel and Weber, took the view that all had been prepared in universal history so that, in Hegel’s words, Europe was,
“the end and centre of world history”.
There is little doubt that such a view led not only to European expansionism and superiority but to exploitation and, ultimately, the godless totalitarianism of the 20th century.
The aim of human rights is to treat human beings as ends and not means. One of the dangers of a liberal democracy and market economies is to reduce the human person to certain activities, units of labour, consumers and voters, and when human beings are treated as ends, unscrupulous Governments and regimes open the possibility of the torture chamber and holocausts of ultimate meaninglessness.
Equally, however, we cannot regard human rights as simply a list of just entitlements dropped into the cradle. If we ask what it means to be a human being in today’s world, we may conclude that there are the time-honoured material essentials of food and drink, shelter and a safe, healthy and hopeful environment, but these are hardly sufficient in themselves. Humanity requires an environment in which to experience the benefits of the virtues of dignity, love, freedom, justice and relationship. In the African concept of ubuntu—I am because you are, because you are, I am—my rights and my humanity and yours are inextricably linked. People who are dignified through human rights also have the responsibility for others.
No system of human law is infallible. In relative terms, the European Convention on Human Rights is short. Undoubtedly there is much to be improved upon. Reform may well be necessary in certain circumstances, and there is probably some baggage to be discarded. There is certainly the need for a better understanding of what it is to be human. It has been said that we are not human beings on a spiritual journey, but spiritual beings on a human journey. Such a journey should include the disappearance of hate and violence, and the clamour for justice. I continue to believe that in some small but very significant way, the European Convention on Human Rights offers a positive contribution to it.
My Lords, I, too, congratulate the noble and learned Lord, Lord Irvine of Lairg, on securing this debate. More than 10 years after the enactment of this momentous piece of legislation, it is time to consider whether the Human Rights Act has lived up to expectations. It is a subject rarely out of the news, but a dispassionate look at its successes and its failures is required.
The title of the White Paper, Rights Brought Home, published in 1997, echoed the consultation document published earlier by the Labour Party entitled Bringing Rights Home. The rhetoric surrounding the introduction of the legislation created a picture of rights invented by us at last being brought into our courts, sparing citizens the long, tedious and expensive journey to secure justice in Strasbourg. It is not without irony that the recent publication by the Policy Exchange is entitled Bringing Rights Back Home. This paper advances the case not for steps to “give further effect” to the convention, as did the Human Rights Act, but rather that control should now be retaken of the convention so as to limit or even eradicate the effect in this country of decisions of the European Court of Human Rights in Strasbourg.
No one in your Lordships’ House or outside can be against the idea of protecting human rights. Few would quarrel with the identification of fundamental rights included in the convention, which we signed in 1950, but even the most fervent supporter of the Act must have quietly despaired at the popular disaffection with it. Sadly, the idea of human rights, once such a noble aspiration, has become trivialised. Since the passing of the Act, I have been engaged as a barrister representing public authorities in claims in tort and now under the Human Rights Act, mainly in the Appeal Court. The Act did not make an immediate impact in this field, but I can tell noble Lords that there has now been a positive explosion of activity. Was this to be expected?
More than a decade ago, a great deal of time and money was spent in educating judges and the legal profession about the forthcoming legislation. Revisiting some of the literature now, it is instructive to see how speculative were the views of commentators about the likely impact of the Act. Perhaps it should have been more obvious that those who would rely on the Act would not be, for the most part, the most attractive members of society. Unfortunately, it has not always been the poor, the sick, the disabled and the homeless who have used it, but prisoners, bogus asylum seekers and illegal immigrants. This has not helped to endear the public to the Act.
One of the more surprising features of the Act has been the response of our judges to the challenges that is has thrown up. Section 2 imposed an obligation on courts to “take into account” Strasbourg jurisprudence rather than to follow it, but the House of Lords Judicial Committee in the case of Ullah said that it was the duty of national courts,
“to keep pace with the Strasbourg jurisprudence as it evolves over time: no more: but certainly no less".
I do not think that Parliament truly expected such acquiescence.
In the passage of the Bill, an amendment was put down the effect of which was to limit the binding effect of Strasbourg case law. In opposing the amendment, the noble and learned Lord, Lord Irvine, said:
“As other noble Lords have said, the word ‘binding’ is the language of strict precedent but the convention has no rule of precedent …We take the view that the expression ‘take in account’ is clear enough … it is important that our courts have the scope to apply that discretion so as to aid in the development of human rights law. There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions”.—[Official Report, 19/1/98; col. 1270-71.]
The way decisions are reached in the ECHR is very different from the approach in this country, where there is a strong regard for precedent and consistency in decision-making. Our courts have expended enormous intellectual energy in trying to impose some sort of order on the ad hoc decisions that emanate from Strasbourg. Despite these efforts, considerable uncertainty has resulted as to what the law is, with the result that many Human Rights Act cases reach the appellate courts, with consequent expense to all parties, principally public authorities.
For those who were prospectively concerned about the potential loss of identity in our law by reason of the impending legislation, reassurance was offered by the prospect of the “margin of appreciation”. The Secretary of State for the Home Department, Mr Jack Straw, said on 3 June 1998:
“The doctrine of the margin of appreciation means allowing this country a margin of appreciation when it interprets our law and the actions of our Governments in an international court, perhaps the European Court of Human Rights. Through incorporation we are giving a profound margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence”.—[Official Report, Commons, 3/6/98; col. 424.]
Those who were concerned that the Human Rights Act would have insufficient impact on our law were afraid that too much respect would be paid to the margin of appreciation—that there would even be a double margin of appreciation—but the reality is that it has featured hardly at all in the responses by courts here to the often-controversial decisions emanating from Strasbourg, which have largely been remarkably creative interpretations of the fundamental rights embodied in the convention. The courts have thought it appropriate not restrict to themselves to the protection of fundamental rights but frequently to reinterpret United Kingdom obligations in areas such as policing, social services, education and even the administration of prisons. These are surely areas where one would expect the courts to reflect the margin of appreciation.
Judges here have been perhaps slightly supine in the face of some curious decisions coming from Strasbourg, but there has of late been a flicker of a response. In the recent case of Horncastle, the Supreme Court declined to follow a decision of the ECHR and encouraged what it described as a “dialogue” to begin between the courts here and there. Experience suggests that any such exchange is less likely to be the elegant exchanges of a Noel Coward play and rather more a Beckett monologue, with Strasbourg the only speaking part.
This leads to prisoners' votes. A significant majority of the UK population is against them voting, although some might regard the right to vote as slightly less controversial than the right to receive heroin substitute, which has been the subject of a large number of claims against those responsible for the “health” of prisoners. However, Strasbourg has decided that the parliamentary ban is insufficiently nuanced and has persisted in this view, notwithstanding the view expressed by the House of Commons in the recent debate.
I welcome the commission set up by the Deputy Prime Minister, which has an enormous and vital task to perform. The members of the commission will not be short of advice. I am sure that they will not be swayed by the tabloid headlines that have so disfigured the debate so far. I only wish that I could tell the House that all the newspaper stories were fundamentally wrong, but they are not.
No one who followed the introduction of the Act can question the motives of those behind the legislation. It took tenacity and intellectual courage to see it through. It would take even greater courage to accept its major shortcomings and the need for change.
My Lords, my noble and learned friend Lord Irvine of Lairg has put into brilliant context a most important subject, but one that is stereotyped and made into a ridiculous Eurosceptic nightmare in the pages of the tabloid press and the minds of some people.
The reality is the opposite. The domestication of the European Convention on Human Rights, via the Human Rights Act, far from licensing various kinds of absurd or even criminal behaviour, has achieved respectful, compassionate and fair treatment for very many of our fellow citizens oppressed by systems or bureaucracy or misguided or oppressive elements of the state, as the noble Lord, Lord Pannick, eloquently described. Enemies of red tape and bureaucracy should welcome the Human Rights Act. It is there to give a human dimension back to state operations. It is not, pace noble Lords, primarily for lawyers any more than water is for water engineers. It is for citizens to rely on and public servants to have regard to.
As a board member of the British Institute of Human Rights, I draw some examples of this reality from its experience in training public sector officials such as those working in the NHS or empowering groups such as pensioners to access appropriate facilities fairly. Many of the successes that they have told me of have used the Human Rights Act to avoid going to court.
The parents of a mentally ill son in residential care were not allowed to visit after they complained of unexplained bruising. Human Rights Act training enabled them to challenge this successfully. Children in foster care were not allowed to see their mother, prone to mental ill-health after the death of their father, because of the lack of supervisory staff, to the great distress of both parties. The mother's advocate was trained to argue, successfully, that the children had a right to see their mother. They now remain very close.
Of course, some problems end up in court—I have many more examples of those that do not, but it is important to realise that they can. One such decision was that, before the closure of care homes, effects on the residents must be investigated and their rights safeguarded. Vulnerable old people in all care homes are more secure because of this. Another case overturned the dreadful decision that a woman fleeing her violent husband made herself intentionally homeless.
The courts found that the Mental Health Act 1983 did not comply with the Human Rights Act because it did not put the onus for proving the need for continued detention on the detaining authorities. As your Lordships know, only Parliament can change our laws. In the Joint Committee on Human Rights, we agreed new regulations to redress this plainly oppressive state of affairs. People have had their liberty restored because of this use of the Human Rights Act.
Many of these rights are not absolute. They need to fit in with other rights. The Human Rights Act provides a mechanism for balancing those rights.
Some say that our emerging human rights culture is deficient in the concept of responsibility, but human rights are inextricably also responsibilities. If a person has a right to peaceful enjoyment of their possessions, other people have a responsibility not to interfere with that—the law would notice that. The proper understanding of rights produces socially responsible behaviour and therefore leads to greater social cohesion.
And in our multicultural society, for it is one whatever politicians say, we need one universally accepted set of basic values to share, to underpin our differences, so that we can be equal before the law. The separate faiths cannot all of them provide that; the Human Rights Act can. The fact is that “human rights” is simply an international legal description of what we would in ordinary speech call respect for the dignity of a fellow human being.
Anyone who believes that every person is of equal worth will find in the Human Rights Act the process to safeguard that worth. That is what it is for. That is what the European Convention on Human Rights is for. We could add to the convention rights, for example, jury trial or freedom of speech. We could have something easier, for instance, to teach in schools to fix it in our sense of national identity—a sort of Gettysburg address for Britain. But let us not try to impair it in any way.
My Lords, I join others in thanking my noble and learned friend Lord Irvine for securing this important debate.
Memories fade—not all politicians have as good a memory as the noble and learned Lord, Lord Mayhew. He reminded us that the ECHR was inspired by Winston Churchill, was largely drafted by British lawyers and was seen after the horrors of totalitarian tyranny as a way of protecting the individual against the arbitrary power of the state. The Human Rights Act incorporates those protections into British law so that British citizens can seek them in British courts. Yet too often now, these rights are viewed as an irritant by politicians seeking easy headlines and by journalists who are eager to write them.
Human rights can challenge everyday assumptions in a modern democracy and, in interpreting legislation to protect fundamental individual rights, courts can sometimes reach judgments that upset majority opinion—and, of course, courts here and in Strasbourg can err. However, while the rule of law must command broad respect in society for it to be sustained, this should not come at the price of requiring majority support for every legal judgment. As the noble Lord, Lord Pannick, set out, this could leave powerless individuals and minorities defenceless. This has been forgotten today by those who oppose such protections for unpopular minorities and individuals and who dislike anything that emanates from Europe on the basic assumption that anything that comes from over there must be damaging here.
As my noble and learned friend Lord Irvine set out so cogently, such views are often based on a toxic stew of misinformation and misinterpretation. As my noble friend Lady Whitaker has reminded us, the Human Rights Act works well in protecting individuals against the arbitrary actions of the state—a mission that everyone ought to be able to sign up to.
The most recent myth—and it is a myth—is that the European Court of Human Rights dictates the interpretation of human rights instruments by British courts. It does not. As the noble Lord, Lord Faulks, has reminded us, Section 2 of the Human Rights Act requires British courts to take into account Strasbourg case law but no more than that—they are not bound by it. In taking such account when interpreting the Human Rights Act our courts also frequently rely on our common law and other sources of authority. There is a margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence.
With great respect to the noble Lord, Lord Faulks—who is a most distinguished lawyer and, as is evident to your Lordships’ House, I am not—I understand that in a number of early cases—for example, in Alconbury and Anderson—even though British judges determined that they were bound by Strasbourg jurisprudence, they were careful to make clear the room for discretionary judgments. In Alconbury, Lord Slynn said:
“In the absence of some special circumstances, it seems to me that the court”—
this judgment was given in the House of Lords, as the Supreme Court then was—
“should follow any clear and constant jurisprudence of the European Court of Human Rights”.
In endorsing this in Anderson, Lord Bingham said that the House of Lords,
“will not without good reason depart from the principles laid down in a carefully considered judgement of the court”—
that is, the European court. I am not a lawyer, but the qualifications “in the absence of some special circumstances”, “any clear and constant jurisprudence”, “without good reason” and “carefully considered judgement” signal considerable freedom of action for the British judiciary. On more recent occasions this clearly seems to be the prevailing trend. In Animal Defenders, for example, UK judges have acted as if they are not bound by Strasbourg jurisdiction.
This is not an academic discussion. The Government have said that they want to bring in a new Bill of Rights and they have set up a commission including distinguished Members of your Lordships’ House to pave the way. There is nothing necessarily worrying about that. The previous Government launched a Green Paper—I was the Minister responsible for it—which discussed the possibility of a new Bill of Rights. However, for us, the purpose of that consultation was not to scrap the Human Rights Act but how best to build on it: how sufficient was it; did we need to go further; was there a case, for example, for entrenching further economic and social rights that we have so far taken for granted?
In contrast, the Conservative Party has said that it wants to scrap the Human Rights Act, although it would not withdraw from the European convention. However, if a Conservative Bill of Rights will still incorporate the ECHR then, whatever the detailed tweaking, the question must arise: why bother? It is hard to avoid the conclusion that the Conservative Party has fallen victim to the occupational disease of politicians—raising expectations in search of short-term political advantage, reckless of the fact that they are doomed to disappoint such expectations in the longer term.
Conservative talk of scrapping the Human Rights Act must give rise to expectations that human rights judgments that have provoked disquiet in sections of the media and the wider population will no longer occur. This is simply not true—not least because many of such cases have resulted not from judgments in British courts but from the European Court of Human Rights. Conservative policy would not prevent such judgments; it would simply force British citizens to go to Strasbourg to seek protections, once again exporting British rights to Europe.
It might be argued that if the Government replaced the Human Rights Act with a Bill of Rights that simply reworded it, it would not be anything other than a waste of precious legislative time but the damage would be only presentational. But is that really the case? If the Conservative Government tried to deincorporate the ECHR through scrapping the Human Rights Act and then reincorporate it in some other way, there is at least a real risk that the Strasbourg court, to which British citizens would still have recourse under Conservative policies, may well be less inclined to defer to rulings by British courts. In other words, any such legislation would be likely to restrict the margin of appreciation rather than extend it.
It is with relief that all of us who care about human rights see the presence of the Liberal party in the Government. Its members have been admirable advocates of the Human Rights Act. At Second Reading of the Human Rights Bill, the noble Lord, Lord Lester, who is a founding father of the Human Rights Act, called the Bill well designed and well drafted. I look forward to his speech later in the debate and to that of the Minister; they have been redoubtable defenders of the Human Rights Act.
There is an important debate to be had but it should not be about replacing the Human Rights Act. As the late Lord Bingham said:
“The rights protected by the Convention and the Act deserve to be protected because they are … the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being”.
The debate we now need to have is not about scrapping the Human Rights Act but about how to build on it.
My Lords, I am delighted that the noble and learned Lord, Lord Irvine of Lairg, has introduced the debate on this very important subject. I am delighted for two reasons: first, we have heard far too few speeches from the noble and learned Lord since the day in June 2003 when he was suddenly expelled from his office as Lord Chancellor; secondly, it was the noble and learned Lord, Lord Irvine, who, in the early days of the Blair Government, secured the enactment of the Human Rights Act. Without him it is doubtful that we would have had anything like as good an Act as we now have.
The purpose of the debate is to draw attention to the European Convention on Human Rights. The element of that convention and of the Human Rights Act on which I wish to concentrate—along with the noble and learned Lord and several other speakers in the debate—is the endless delay of British Governments to alter the law to allow some prisoners to vote in elections. This has been held by the European Court of Human Rights to be a breach of the prisoners’ rights. This has aroused aggressive responses from much of the media and many citizens, not least the Prime Minister.
However, if we think a little more about the situation, we may decide that this is a strong conclusion at which to arrive. There will be no particular pleasure for prisoners in casting their vote. In the open world, casting votes is a right, but it is also regarded by many as a duty—not a legally binding duty, of course, but a civil obligation. Many prisoners have never voted—sometimes because they have failed to register, sometimes because they have never bothered to go to the polling station. Prisoners getting towards the end of their sentences should be encouraged to take an interest in public life and what is going on outside the prison—that includes voting.
Providing opportunities to vote should be regarded not as some sort of gift or present to the prisoners but as part of the rehabilitation process. I do not believe that prisoners serving a life sentence or with many years to go before release should have a vote nor that the European Court of Human Rights would require them to but prisoners with, let us say, less than four years of imprisonment remaining should have the right to vote. Given that most forms of election in the United Kingdom run in a four-year cycle, this means that prisoners would be released while the winners of the elections in which they voted were still in office.
The issues involved in voting by prisoners reminds me of the great penal reformer from the 1920s to the 1940s, Sir Alex Paterson, and his dictum that,
“men come to prison as a punishment, not for punishment”.
The loss of liberty is the punishment, not harsh treatment in prison. The issue of prisoners voting is an interesting and unusual example of human rights. Voting, as I have said, is a mixture of right and of obligation. I do not think that it is an absolute right which can be exercised by everybody in prison but the duty element of voting needs to be kept in mind, as must the quotation from Alex Paterson. There is no reason why, for prisoners approaching release, deprival of voting should be regarded as a justifiable punishment. Instead, voting should be regarded as training for release. This is how the Government should handle it.
My Lords, I, too, am grateful to the noble and learned Lord, Lord Irvine, for obtaining this important debate. As with other noble Lords, I will concentrate on the issue of voting for prisoners, which has already been raised by the noble and learned Lord, Lord Irvine, and the noble Lords, Lord Prescott, Lord Thomas and Lord Goodhart. As the noble Lord, Lord Prescott, said, when the issue was raised in the other place on 10 February, the discussion appeared to be nothing about voting for prisoners but objections to Europe, which was not the point. When we look at the issue in the context of human rights, it deserves better than that and so do we if we think of ourselves as a civilised nation in our approach to the resettlement of offenders—as the noble Lord, Lord Goodhart, has mentioned.
I must declare an interest, first as an advisory member and now a trustee of an organisation called the International Centre for Prison Studies. Its job is to go round the world advising international prison systems on what is described in its manual as a,
“human rights approach to prison management”.
The reason for this is that when people have looked at the way prisons are run, there is absolutely no doubt that the decency which accompanies a human rights approach is most likely to result in successful resettlement. To quote from this manual:
“The legitimacy of this handbook on good prison management comes from its solid grounding in these international human rights standards, which are recognised around the world …. [The] concept of human rights is not merely another subject to be added to the training curriculum. Rather, it suffuses all aspects of good prison management and is integral to it”.
That manual was launched in January 2002 by the then Foreign Secretary, Jack Straw. I have personally used it in Libya and Turkey, and have been fascinated by its reception by Governments who saw—and still see—their prisons as a way to improve their reputation for human rights around the world.
I was Chief Inspector of Prisons in 1998 when the European convention was introduced into English law. At the time, a large number of people said that this introduction would be followed by an absolute torrent of litigation by prisoners who would claim that their human rights had been breached by the way that they were treated in prison. I asked a lawyer to run prison rules against the European convention and alert me to where there were any discrepancies. There were none. In other words, if prison rules were breached, the European convention was being breached. It is fascinating that, when one looks at the amount of litigation brought by prisoners since then, nothing has really been brought about the European Convention on Human Rights, with the exception of this alleged breach of Article 3 of the First Protocol, about prisoners voting.
Article 3 of the First Protocol merely says that,
“free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”,
are guaranteed. It makes absolutely no mention, as the noble and learned Lord, Lord Irvine, said, of prisoners voting. When this lack was brought to my attention, I asked the Home Secretary why prisoners were being denied the vote. He replied that prisoners had lost the moral authority to vote. I did not know that moral authority came into voting and suggest that, if it is applied, there are several other people who would be denied the vote.
So began the litigation which has been the subject of quite a lot of today’s discussion. I do not intend to go through it, but it is now more than seven years since the European court ruled unanimously that we were in breach of the convention because we did not allow prisoners to vote. The solution has been in our hands ever since. I recommended to the Government in the first consultation document, which the noble and learned Lord, Lord Falconer, published that we should adopt the same approach as Germany and France. At the time of sentence, and bearing in mind the crime committed, the judge should remove the right to vote during the period of that sentence. I seriously believe that that would have taken the whole of this issue out of the realms of where it has got to. Parliament would have made the decision, which is what Parliament wants to do. The decision would be related to the crime. When you look at the people in prisons, there are vast numbers in the sad category or the short-term category, not masses of rapists, arsonists and all the other people who are quoted in particular in the 10 February debate—which was, frankly, as the noble and learned Lord, Lord Mayhew, suggested, an exercise in getting overexcited.
That is the way to go. I hope that what happens now will put this seven-year delay behind us and that we will take this away from any suggestion that the European convention or the European Court of Human Rights is at fault. When we sign up to conventions, we agree to their conditions. We cannot pick and choose. Any Government who deliberately appear to be either breaking the law or picking and choosing send an appalling message to those people whom they imprison—the very people we are trying to resettle.
My Lords, I am grateful to my noble and learned friend, Lord Irvine of Lairg, not only for initiating this debate but also for the enormous contribution that he made as Lord Chancellor to the development of human rights in this country. Many noble Lords have referred to the responsibility of Parliament and of politicians. I want to develop that theme. After all, we have in this Parliament the Joint Committee on Human Rights—of which I am a member. That committee itself has a big responsibility for ensuring that we adhere to the European Convention on Human Rights and that our legislation works sensibly in relation to that.
We have a good story to tell, so I am disappointed that, as a country that did so much work historically in developing the concept of human rights, we are now treating it as a bit of a political football rather than as a very serious issue and one fundamental to the values of our society. We have had reference made to the part that Winston Churchill played, and the Labour Government played an important part in developing the Human Rights Act. Of course, nothing is perfect, and of course it is right that those of us who support the European Convention on Human Rights and the European court and the Human Rights Act have criticisms to make, and it is right that we should be able to make them. Of course, human rights are not just for lawyers, although lawyers have made very powerful contributions to this and previous debates.
I would like to say a little bit about the backlog of cases in the Strasbourg court. My understanding is that 70 per cent of the court’s judgments concern the repetitive applications defined as issues that the court has already decided but which have not yet been properly implemented at a national level. Clearly, if there is a delay in implementing a decision, other people will also bring their cases forward, which apparently accounts for a large proportion of the backlog of cases. The Hirst case regarding prisoners’ rights has already been referred to by a number of your Lordships, but it is one example of an issue that results in repetitive applications coming forward.
The other way in which the heavy pressure on the European court can be lessened is for all member states to have proper parliamentary scrutiny of their legislation. The Joint Committee on Human Rights has as its responsibility looking at all legislation coming forward to see whether it complies with the Human Rights Act. Clearly, on occasions, we have been very critical of Governments and have had Ministers come before us to challenge them on why they were not producing legislation compliant with the Human Rights Act. Better parliamentary scrutiny across countries would result in fewer cases going to Strasbourg. Of course, it is one of the key responsibilities that the Human Rights Joint Committee has, as well as the responsibility for following up on Strasbourg cases.
I do not want to spend a lot of time on the Hirst case and votes for prisoners, because it has been fully dealt with, except to say that I am astonished by what has happened with an issue that is important in principle but is actually trivial. If the Government had given the right to prisoners serving up to four years, apart from one or two newspapers commenting for a moment, it would have all happened. I do not think that elections would have been determined by the votes of prisoners in our jails. So it is a very minor issue, although important in principle—but goodness, we have been making a fuss of it, and not just now. When I was in the Commons, I introduced a Private Member’s Bill dealing with giving rights to prisoners. Although it concerned mainly rights about letters, cells, visits and so on, it did have one clause giving rights for prisoners. No one mentioned anything about the rest of the Bill, except the fact that I was suggesting rights for prisoners, and the media got very excited about it. Nevertheless, the issue has come back, thanks to the Strasbourg court. I hope that the Government will get on and do something about this, as it is a disgrace that we who believe in the rule of law should be disobeying a basic law from a basic court that we have helped to create.
Of course, I realise that human rights are not easy for Governments, which is why Parliament has to be active and why an effective culture of human rights depends on the part that national parliaments play. I wish that other parliaments had a human rights committee, as we have here.
I mention in passing the vexed question of a Bill of Rights for Northern Ireland, which the noble Lord, Lord McNally, has occasionally dealt with in Answers to Questions here. There is a hold-up there which I hope will be eased so that the Bill of Rights for Northern Ireland, which was agreed in the Good Friday agreement, will be proceeded with.
The Joint Committee on Human Rights produced a report some time ago on a Bill of Rights for this country. Some of the issues in it have been referred to by my noble friend Lord Wills. We suggested that a Bill of Rights for this country should include social and economic rights—something that is quite contentious but which has happened in South Africa, for example, and which would give human rights even more of a cutting edge than they have had so far. I hope that the Government will consider that.
I am disappointed by the Government’s attitude to human rights, but I note that there are some excellent people on the commission that they have appointed, some of them in your Lordships' House. I hope that that will achieve a sensible report.
From November this year, the United Kingdom will hold the chairmanship of the Council of Europe. Some Members of this House are active in the Council of Europe. I hope that it will enable this country to argue for increasing parliamentary involvement in human rights as a central theme during its six months of chairmanship. Human rights are fundamental to the values of this country and I hope that they will stay an important part of the culture and attitudes of the British Parliament.
My Lords, we are all indebted to the noble and learned Lord for securing this fascinating debate. I want to address the impact of the convention on press freedom and privacy. I declare an interest as chairman of the Press Standards Board of Finance, which funds the Press Complaints Commission and appoints its chairman, and as an executive director of the Telegraph Media Group.
As a starting point, I make it clear that I am an ardent admirer of the European convention, which as we have heard was established after the Second World War to limit the power of the state—an aim that I wholeheartedly support. I think it no coincidence that the British Member of Parliament guiding the drafting of the convention was a lawyer at Nuremberg, Sir David Maxwell Fyfe, who saw up close the horrors of totalitarianism. The noble and learned Lord, Lord Irvine, in his opening remarks, characterised the media, of which I am part, as wanting to destroy the Human Rights Act. Let me make it clear that I do not wish to see the Human Rights Act destroyed, not least because I see the great good that has come from it, which the noble Lord, Lord Pannick, outlined with his customary eloquence. But there are valid criticisms of it, and I want to make one or two today.
I am no lawyer, but I believe that the architects of the convention intended it to be used, in the words of the White Paper preceding the Human Rights Bill,
“to enable people to enforce their Convention rights against the State”,
not as a charter to regulate private dealings. If the convention has become the subject of some opprobrium in recent years since the passage of the Human Rights Act, it is because it is being deployed as it was never intended—to enforce those rights in private disputes. That is why real problems have now arisen, in particular with the developing privacy law.
There is an important point here, which has been made a number of times but which I want to reinforce. It is commonplace to attack judge-made privacy law and lay the blame for this at the door of the judiciary. That is wide of the mark, and I agree with the comments of the noble and learned Lord. It is not the courts that are responsible for the changing balance between privacy and freedom of expression; they are merely interpreting the law, which does not spring from some form of public policy ether but from the Human Rights Act and the manner in which it incorporated the European convention into our domestic law. Parliament is responsible for that—not the judges.
Indeed, those involved in scrutinising the Human Rights Act who understood the delicate ecology of personal privacy and freedom of expression warned of such consequences. My noble friend Lord Wakeham, for whom I used to work, speaking in Committee on this legislation, told this House that the Bill,
“would damage the freedom of the press and … inevitably introduce a privacy law”.—[Official Report, 24/11/1997; col. 771.]
He added specifically on the issue of injunctions, with his typical prescience,
“in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence”.—[Official Report, 24/11/1997; col. 773.]
The Government took those concerns to heart and amended the legislation, with Home Secretary Jack Straw committing that,
“we have no plans to introduce legislation creating a general law of privacy”,
adding, on prior restraint,
“interlocutory injunctions should be granted … only in the most exceptional of circumstances”.—[Official Report, Commons, 2/7/1998; col. 541.]
That it has not worked out that way is because Section 12 of the Act did not, I believe, deal explicitly enough with the mischief that was predicted and the way in which claimant lawyers have now abused the legislation with injunctions, sometimes anonymised injunctions, increasingly becoming the new weapon in the armoury of reputation management for some whose reputations do not deserve to be defended. I can only speculate what Sir David Maxwell Fyfe would think about the convention being used by cheating footballers to protect their commercial image.
I will not spend time on the injunction issue other than to say that one of the reasons Governments of all persuasions have opposed privacy laws is that they know how statutory legal frameworks are too slow to keep up with the breakneck speed of media development in a digital age. The internet has had a permanent, transformative and highly positive impact on the press, one aspect of which has been the huge propagation in the number of platforms available to it. When the Human Rights Act was put on to the statute book, Google, Twitter, Facebook and other social media were all far off in the future. The law has remained static but the media have changed, which is one of the reasons I believe Jack Straw talked during the passage of the Act about the need to preserve self-regulation—in an internet age, it will always be the only truly effective way to protect personal privacy in a manner that can keep up to date with the bewildering and rapid pace of media development.
Indeed, the Press Complaints Commission has proved highly adept at dealing with often highly complex privacy issues in a common-sense, unobtrusive way that does not raise all the problems of public court cases or secret injunctions. The noble Lord, Lord Prescott, treated us to his customary bashing of the PCC. I do not think that that is borne out by facts; you need only to look at issues such as harassment, a key aspect of personal privacy, where the PCC has been hugely successful in dealing with so-called “media scrums”. There is also the PCC’s vital but unsung pre-publication work, of which the noble Lord himself once made use, which helps to deliver privacy to many ordinary people without impinging on freedom of expression.
Those successes—and they are successes—help to bring perspective to this issue. It is easy to think that there is some sort of crisis of privacy in this country. Yes, there are problems with injunctions and the relationship of the law to social media, but the truth is that, while not perfect, and I accept that point, in recent years the British media have greatly improved the way in which they deal with personal privacy, particularly for ordinary people who could never afford to use the courts. The problems are at the margin and we do not need new legislation to deal with them; in my view, that would be the wrong course. Instead, one of the ways in which we could help to deal with the issue of injunctions would be for the courts to say to claimants, “There is a code incorporating your convention right to privacy that binds all newspapers, and a body that enforces it. Try that before coming to us”. That is the logic flowing from the very welcome European Court judgment in Mosley, which I hope the Secretary of State will ponder during the review that he is conducting.
I finish as I began. The European convention is something to be celebrated. One of the best ways that we can deal with the controversy surrounding it is for the Government to go back to Section 12 of the Act, look at the issues that gave rise to it, assess its efficacy and, if necessary, put a hand on the tiller to adjust it as I have suggested. I am sure that there is no more delicate hand than that of my noble friend the Minister to do just that.
My Lords, my noble and learned friend Lord Irvine is to be congratulated on the Human Rights Act, which he introduced when Lord Chancellor, and which introduced the European Convention on Human Rights into domestic law. I particularly want to commend this aspect of my noble and learned friend: he did so and then was the Act’s champion in the years thereafter, sometimes in the face of a touch of authoritarianism that came from Home Secretaries, even those whom he sat with in Cabinet. He was a great liberal Lord Chancellor, and I pay tribute to him for the role that he played.
My noble and learned friend reminded us of the gear change that took place back in March 1993 when John Smith gave the Charter 88 lecture, which I had the great privilege of chairing. It was a gear change because John Smith committed the Labour Party then to this change in law and its ability to protect our rights.
When my noble and learned friend Lord Irvine introduced the Second Reading of the Human Rights Bill into this House in 1997, he indicated the weakness of the traditional position of our unwritten constitution. He explained that it gives no protection from the misuse of power by the state, nor from acts or omissions of public bodies that harm individuals in a way that is incompatible with their human rights under the convention. Of course, he was right. I now chair Justice, the lawyers’ organisation that has membership across all parties and none, which has long supported the incorporation of the convention and supported the Human Rights Act. Some 11 years on, it is our view—it is certainly mine—that our constitution is immeasurably the better for that incorporation.
These positive rights are not alien imports, as my noble and learned friend has said; they are largely a distillation of English common law, often misunderstood by many in the public and in the Conservative Party. It was about reintroducing many of our own principles into European law. It was an organised code, drafted by lawyers from our own Foreign Office and by our own parliamentarians. There is a great pamphlet that I recommend to the House, written by Peter Oborne and Jesse Norman—not the opera singer but the Conservative Member of Parliament—describing how the Human Rights Act is rooted in common law.
The first major case in which our domestic judges seriously grappled with this changed world was the Belmarsh case. The judgments of the House of Lords in that case provide a revealing comparison with the infamous decision in Liversidge v Anderson, a case during the Second World War. The point was almost the same: the rights of those who faced internment or imprisonment without trial. Mr Liversidge was a Jewish émigré whose original name was Perlzweig. Because he had changed his name, he became a subject of suspicion and ended up being incarcerated without trial. The earlier case is famous for Lord Atkin’s dissenting speech where he talked about the rule of law and justice prevailing even amid the clash of arms.
The majority of the then House of Lords saw no problem in depriving people of their liberty on the say-so of the Home Secretary. In Belmarsh, though, under the Human Rights Act, the judiciary, led by Lord Bingham, carefully compared what the Government had done with the provisions of the convention and found it wanting. We saw how the common law has been enriched by the incorporation of the European convention.
In this way the Belmarsh judgment demonstrates what my noble and learned friend Lord Irvine had talked about, and talked about again in his Tom Sargant memorial lecture in 1997 where he spoke of the Human Rights Act providing a citizen with the right to assert a positive entitlement and for it to be expressed in clear and principled terms. The incredibly positive thing is that it is provided not just to citizens but to any human being. As the right reverend Prelate says, the Act recognises the moral significance of every person, not just citizens.
The convention has proved its worth in the intervening decade. It has encouraged our judiciary seriously to hold the Government to account, particularly with regard to their approach to terrorism. I see that from my own experience in those cases. Indeed, the European Court established by the convention has given the domestic judiciary a lesson in how to interpret the convention in key decisions, where their own domestic decisions were too deferential to the Government of the day. Those included the retention of DNA taken by the police from innocent people; the misuse of police powers under the Terrorism Act, in the case of Gillan; and the extent of control orders, in the case of A. They are all cases where the judges of the European Court were bolder than our judiciary, which is always being complained about. In my view, the European Court was correct there.
In a small number of cases, the jurisdiction of the European Court has been challenged as having gone too far, and some of them have been mentioned today. There has been considerable adverse comment against the decision in Chahal that the prohibition against torture should extend to a prohibition against a state effectively conniving in torture by sending someone back to a state where there is a reasonable likelihood that they will be tortured. In the light of what we now know about the US extraordinary rendition programme, how right that decision was—and how shameful that the UK Government thought to intervene in another case, Saadi v Italy, to overthrow the principle.
The Arab spring has shown us the true nature of a number of the regimes to which the UK wanted to expel people. For example, there can now be few illusions about the regime of Colonel Gaddafi or about the true nature of his English-educated son. Yet the UK wanted to close its eyes to the reality and send people back on the basis of undertakings that were likely to be of little worth. It took the courts to express scepticism of the value of undertakings from such sources in the cases of AS and DD, and in a case that I was involved in to do with possible undertakings from Pakistan.
The European Court of Human Rights is an important part of the apparatus of the ECHR. Its doctrine that the convention is a living instrument has kept it up to date and avoided some of the absurd originalism associated with the American constitution. Its value has to be recognised. I accept that there are problems around the issue of the margin of appreciation. I hope we will be able to visit that in our commission, which I sit on and which will look at how the court’s decisions should deploy that doctrine. Another issue concerns judicial dialogue. I hope there can be more of that in the case of Horncastle, which is currently before the European Court’s final chamber. It is a case that we should follow with some interest.
Finally, the convention is to be welcomed. The new commission that will look at a British Bill of Rights recognises that there is a guaranteed floor—the ECHR. We as a country have gained immeasurably from the way in which the Human Rights Act has brought it more visibly into our constitution. In proclaiming his crucial role in this process, I salute the noble and learned Lord, Lord Irvine.
My Lords, I am extremely happy to join other noble Lords not just in congratulating the noble and learned Lord, Lord Irvine of Lairg, on securing this topical debate today, but in paying tribute to his work on human rights. The Act that we are discussing will constitute a permanent monument to him far better than any statue we may later think it right to erect.
The Human Rights Act has enabled British judges to make their own distinctive contribution to the development of human rights law in Europe. It has also achieved major improvements in our domestic law when the state overreaches itself. Let me cite just a few examples: the right to attend peaceful demonstrations without interference from the police; a duty on local authorities not to house vulnerable people in insanitary and dangerous accommodation; a requirement for the DPP to clarify his position on prosecuting in cases of assisted suicide; and an end to discrimination on the grounds of sexual orientation.
A constructive dialogue has also developed between the British courts and the Strasbourg court, which has benefited the development of European human rights jurisprudence. Sometimes we have had to accept a correction from Strasbourg. A good example concerns the extensive and previously unchallengeable DNA database, as in the case of Marper in 2009.
Far more common have been situations in which the Strasbourg court has followed the British courts in rejecting a human rights complaint, having had the benefit of the reasoned judgments of our own Supreme Court. A good example of the interplay between our courts and Strasbourg is provided by the decision in the case of Horncastle, which has been mentioned twice in this debate. Our Supreme Court held that where Strasbourg decided a case with insufficient understanding of our domestic law, it could decline to follow Strasbourg. The Supreme Court felt that Strasbourg had failed in a previous decision to take proper account of our carefully crafted statutory code for the admission of hearsay evidence in criminal cases. Thus, the Supreme Court declined to follow Strasbourg and held that the defendant’s convictions should be upheld. Effectively, the Supreme Court was asking Strasbourg to think again. This is precisely how a constructive dialogue should develop.
Finally, a major triumph of the Act has been to change the culture of Whitehall. As your Lordships know, every Bill that comes before Parliament must be accompanied by a ministerial statement of its compatibility with convention rights. I know that Whitehall takes this very seriously. Much effort goes into the preparation of legislation to ensure that this statement can be made properly. This is a cultural change that does not hit the headlines but is a huge gain from the Human Rights Act.
My Lords, I salute the noble and learned Lord, Lord Irvine of Lairg, for his courage and liberalism. It is probably not generally understood that when he was Lord Chancellor there was a sustained campaign by the media to obtain a complete exemption from the Human Rights Act. I helped the noble and learned Lord to stand up against that. Section 12 of the Human Rights Act, which was introduced by the noble Lord, Lord Wakeham, was the compromise that we secured to achieve the passage of the Bill. First, I salute the noble and learned Lord, Lord Irvine, because he paid a personal price for his courage. The media campaign against him was not about the price of wallpaper or whether he peeled his own oranges, but came very much from straight hostility to him for standing up against this completely misguided media campaign. I emphasise that at the beginning.
Secondly, I very much regret the fact that the previous Government refused my repeated requests to publish the preparatory work on the Human Rights Act. I will probably not live long enough to see the full record. However, on this issue the public would find it very beneficial to see that the noble and learned Lord, Lord Irvine of Lairg, was the true architect of the Human Rights Act, although his colleague, the right honourable Jack Straw, would contest this. I hope it may become possible to see that record published.
Thirdly, one of the ingenious provisions of the Human Rights Act, to which the noble Lord, Lord Hart, just referred and which none of us thought significant at the time, was the obligation on Ministers, under Section 19, to make a statement on the compatibility of a Bill. That, coupled with the work of the Joint Committee on Human Rights—like the noble Lord, Lord Dubs, I served on that committee—has meant that instead of human rights being the property of judges and lawyers, they have been made part of the other two branches of government, the Executive and the legislature, through the scrutiny of Ministers’ statements and reasons why particular measures are or are not compatible with the convention. New Zealand has a weak version of that but no other country that I know of, in the common law world or beyond, has anything like the Joint Committee on Human Rights or that compatibility statement. It is admired across Europe and there are suggestions that it should be adopted elsewhere. It is a very important part of our legislation.
Another very important part is the compromise between parliamentary sovereignty and effective legal remedies. My original Private Member’s Bill on human rights sought to give judges the same power that they have under European Union law to strike down inconsistent legislation. The judges came to me and said, “We don’t need that and the Commons will never allow it. Why not do something more moderate?”. The declaration of incompatibility was invented to reconcile parliamentary sovereignty with the need for effective remedies. That was wise and my first efforts were misguided in terms of our own legal system. Much money—£6 million—was spent on training every judge, magistrate and tribunal chair for two years before the Human Rights Act came into force. One of the master strokes was the appointment of Lord Bingham as president of the Supreme Court—or the Law Lords, as they then were—to lead our most senior court, which he did magnificently. We miss him very much today.
It is very important for our judges, lawyers and the public at large to approach European convention law through our law and not around our law. By that I mean that it is very important to make what we regard as European convention rights, but are in fact British rights, part of the fabric of our legal and political system, and not to tear holes in that fabric. I believe that much of that has been done by our judges already, but perhaps more needs to be done to protect our common law traditions in a way that is compatible with the convention. Like the noble Baroness, Lady Kennedy of The Shaws, I am privileged to serve on the Bill of Rights commission. I assure the noble Lord, Lord Wills, that I would not be there if I thought there was the slightest risk of weakening the current protection of human rights. Indeed, if he does not mind my saying so, I spent 18 fairly futile months in his department trying to persuade the previous Government to do something rather similar to what I hope the commission might eventually achieve. This is an area in which political parties sometimes do well. We were a coalition in opposition, were we not, in the 1990s in seeking to get the Human Rights Act on to the statute book. I was on the Cook-Maclennan commission at the time, as was the noble Lord, Lord McNally.
One of the terms of reference of the new commission is to look at the reform of the Strasbourg court. Since I have been arguing cases there since 1967, I think that I understand the weaknesses, as well as the strengths, of the system. Suffice it to say that in my view, if we really want change, there is a need not only for fundamental reforms of some aspects of the court and its procedures, but for more human and financial support. Unfortunately, there is zero growth and even the meagre resources devoted to the court, compared with the much greater ones for the Luxembourg court, have been held up by the Interlaken process. The noble Lord, Lord Tomlinson, nods. There were to be at least new staff, resulting in more effective case management, but that has been put in the freezer pending the Interlaken process. That is quite ridiculous. The resources, having been voted, should not have been held up in that way. Like the noble Baroness, Lady Kennedy, I and others, will be going to Strasbourg and thinking about reform of the court. I very much welcome the fact that the terms of reference allow us to do that.
My Lords, I join other noble Lords in congratulating the noble and learned Lord, Lord Irvine of Lairg, on securing this debate. Nowadays, when we discuss fundamental rights, we inevitably have to talk about the European Convention on Human Rights. This convention is by no means the only international instrument in the field of human rights, but it is certainly one of the most important.
Until the beginning of this century—that dates me a bit—I was for almost 14 years a member of the United Kingdom Parliamentary Assembly of the Council of Europe. For about four years within that period, I was chairman of the council’s committee on legal affairs and human rights. Therefore, I observed the functioning of the human rights convention and, to a certain extent, played a role in its implementation. We should continue to remind ourselves that the convention is based on the Atlantic Charter signed by Churchill and Roosevelt in the middle of the Second World War and the 1948 United Nations Universal Declaration of Human Rights. Yet, the history of human rights is much older than that—it goes back to the French Declaration of the Rights of Man, the Magna Carta and the Bill of Rights. This means that in many respects the convention has its roots in our own past. Those who pretend that the convention is entirely a continental matter, and has continental legal implication, are wrong in my view.
Half a century ago, the French, under de Gaulle, refused to accept the convention, arguing that it was “too Anglo-Saxon”. The truth is, however, that the convention is a well balanced product of the best of western European legal traditions, of which Britons, French and other Europeans may be equally proud. The convention was concluded in 1949, which means that it is now 60 years old. Since 1949, additional rights have been added and the mechanism of the convention has been modified and strengthened. There is now, of course, a permanent court sitting in Strasbourg, with the judges permanently resident in Strasbourg, which did not apply in days gone by.
Today there is only one country in Europe that is not a member of the Council of Europe and does not adhere to the European Convention on Human Rights—Belorussia. All the 47 other European countries adhere to the system. A large number of them were communist or fascist dictatorships only a few decades ago. Parliamentary democracy in some form, human rights and the rule of law did not exist in these countries until very recent times. Whereas in the United Kingdom the court of human rights may correct marginal imperfections, for the new democracies the court plays an essential role. I do not need to underline the importance of this if we want to prevent their sliding back into some form of dictatorship. It is mainly for this reason that the United Kingdom should do whatever it can to support the court of human rights and to strengthen it.
The court of human rights and the convention itself are often criticised in our Parliament and popular press. Sometimes this criticism is justified although, of course, not always. No man-made thing is perfect. The court is made up of human beings who, like all human beings, may not always be perfect in their decision-making.
One of the problems of this criticism is that it tends to oversimplify things and to disregard the nuances. However, the court hardly ever takes decisions in which it categorically states that this or that is right or wrong. Normally its decisions are couched in much more prudent formulae such as, “under these conditions”, “in this particular situation”, “in the absence of”, and so on. This was the case with the court’s decision on the voting rights of prisoners, which raised a storm of protest in this country. Yet most of the effects of the court’s decision could be removed were we to pass adequate legislation, as the noble Lord, Lord Ramsbotham, has just indicated. On the other hand, if we have serious objections to one or several provisions of the convention, it is not unlikely that other European states share those with us. The convention could be changed, and although this would admittedly be a long and very cumbersome process, it is possible. Indeed, Britain might envisage taking the initiative in such a case.
In international human rights Britain has always played a leading role. I believe that it could, and should, do so in the future as well. Too often in European co-operation our country takes a “wait and see” attitude, to discover later that it has to jump on a running train—a train which might have been better adapted to our needs and traditions if we had been on it from the beginning.
My Lords, I must add my own expressions of gratitude to those of many others in your Lordships’ House to my noble and learned friend Lord Irvine of Lairg for introducing this debate on an interesting and important subject. I have found myself in broad agreement with nearly all that has been said by your Lordships, but I want to say one or two things about the status, function and relevance of the Strasbourg court decisions.
The Strasbourg court is the court of the convention. One uses the expression “the convention” in a slightly misleading sense because the convention as such was not incorporated into our domestic law. What were incorporated were the specific articles of the convention, which are set out in the schedule to the 1998 Act. For convenience, however, I will continue to refer, as others have done, to the convention having become part of our domestic law. The authority of the Strasbourg court, in so far as it was provided for under the convention, was not dealt with by incorporation; it was dealt with in the body of the Act by Section 2, which said in terms that the courts of the UK, in determining questions which arose in connection with convention rights, “must take into account”—those were the critical words—any,
“judgment, decision, declaration or advisory opinion”,
of the Strasbourg court. Surely the words “take into account” must mean what they say: no more, no less.
The judgments of the Strasbourg court are highly persuasive. The court is composed of a number of very eminent jurists and the judgments that they produce, when they are relevant to issues being decided by the courts of this country in relation to the incorporated articles of the convention, are highly persuasive. However, the judgments are not binding. The fact that they are not binding was recognised by the noble and learned Lord, Lord Irvine, when that Bill was before this House on Report. At that time he said:
“There may … be occasions when it would be right for the United Kingdom … to depart from Strasbourg decisions”.—[Official Report, 19/1/98; col. 1271.]
So it is that domestic courts are not bound by Strasbourg decisions.
In a fairly recent House of Lords decision, Kay v London Borough of Lambeth, when the House of Lords was the final court in this country, this House held unanimously that where there were conflicting decisions between the Strasbourg court on the one hand and the House of Lords on the other—it would now be the Supreme Court—the obligation of other domestic courts was to follow the House of Lords, not the Strasbourg court. I believe that it is important to bear that in mind: the Strasbourg court decisions are not part of the law of this country. They are highly persuasive and they may be followed, but they do not have to be.
My second point concerns the nature of the Strasbourg court—the court of the convention—as a court of final resort. The Supreme Court now and the Law Lords in days past constituted the final court of appeal in the United Kingdom, not just England and Wales but Scotland and Northern Ireland as well. From time to time, courts of final appeal mould existing law in order to cater for new situations which appear to have arisen, or to take account of new ideas which have been formulated and appear relevant to cases for decision. That is what the Supreme Court does, what the Law Lords used to do, what the Supreme Court of the United States does and what the High Court of Australia does.
All of this is, in a sense, inconsistent with the strict constitutional principle of the separation of powers. Yet that does not matter because, in all those jurisdictions I have mentioned, there stands over the court a democratically elected and accountable legislature which can always reverse judicial decisions if the legislature considers that that is necessary and the judges have gone too far. That safeguard makes development of the law by judges acceptable and desirable, in my opinion. However, so far as the Strasbourg court is concerned, there is no comparable control from a democratically elected and accountable legislature. That feature of Strasbourg jurisprudence has to be borne in mind: the judges’ decisions cannot be reversed, which is another reason for underlining the requirement that the judgments should be treated in this country not as binding but merely as highly persuasive.
The case of prisoners’ votes is illustrative, or may become so. Strasbourg ruled that it was contrary to human rights to have a complete bar on prisoners voting. However, that is not binding in this country. It is persuasive, and there may be very good reasons for allowing prisoners, or some prisoners in some circumstances, the right to vote, but Parliament would have to decide that. In my respectful opinion, however, it is quite wrong to say that failure to follow Strasbourg is a failure to accept the rule of law. Strasbourg does not form part of the rule of law so far as this country’s jurisprudence is concerned. It is highly important to make sense of the relationship between the Strasbourg court and the courts in this country.
My Lords, I have the privilege to be one of the representatives of your Lordships’ House in the Parliamentary Assembly of the Council of Europe. I immediately opted to serve on the political committee in that Council but quickly asked if I could additionally serve on the legal affairs committee, which had an agenda that I considered far too important to be left as the exclusive preserve of lawyers, so I serve on both those committees.
There has been an absolutely exponential growth in the workload of the European Court of Human Rights. If we take the years from its formation through to 1998, the total number of applications to the court was 45,000. If we look at last year, the total applications were 61,300—a 50 per cent increase in that single year on the total for the first 41 years of its actions. That is one reason why the court desperately needs reform. Its delays are very long. At the beginning of 2001, there were approximately 139,650 applications pending before a judicial formation, more than half of which were from four individual countries: Russia, Turkey, Romania and Ukraine. Yet by the time those long-delayed cases are heard, 97 per cent of them are judged to be inadmissible. That is causing an astronomical blockage in the court’s work and needs to be addressed.
The noble Lords, Lord Prescott and Lord Pannick, and a number of others referred to the need for reform. Sorting out earlier judgments on admissibility is a priority in that reform. Stopping some practices that have emerged after the prisoner voting case is another problem. As noble Lords will know, applications to the European Court of Human Rights are made individually, but since the view on prisoner voting several firms of solicitors have been touting themselves around prisons, signing up prisoners on a no-win no-fee basis and submitting thousands of individual applications. That is also clogging up the system, so that sort of legal abuse needs to be sorted out.
However, the most important reform needed is to the financing of the court. No one so far, I think, has referred to this. The Council of Ministers of the European Union gets all its resources for making decisions from the same treasury that coughs up the money for the contribution to the European Court of Human Rights and the work of giving effect to the European convention. In the last decade those people, who get their money from exactly the same source, found no difficulty when the outcome of the Convention on the Future of Europe was running into difficulty at a European Heads of State Meeting in finding a bribe for the Austrian Government. They could not get unanimity at a European Council meeting and, in order to encourage unanimity, they created the fundamental rights agency in Vienna. That fundamental rights agency was unnecessary. It largely replicated the work that was being done by the European Court of Human Rights, but the same Ministers who pleaded privation when it came to properly funding the European Court of Human Rights threw money at Austria, and we contributed to the European budget as if money was no object. They could in effect get plenty of money for one useless purpose: undermining the useful purpose of the European Court of Human Rights.
I am not asking the Minister to solve the problem. That would be asking too much even of the noble Lord, Lord McNally. However, I ask him to tell us whether it will be a fundamental part of the British presidency of the Committee of Ministers to finance those two organisations relatively sensibly. My view of relative sense is to take it from the fundamental rights agency and give it to the European court. I do not expect him to agree with me, but I give him a possible solution. We have a European Court of Human Rights starved of resources, but the same Ministers of the 27 EU countries have no difficulty finding them for other purposes.
When we come to judgments of the European Court of Human Rights, we have to accept that they cannot be regarded as some kind of à la carte menu from which we pick and choose judgments that we like. We are obligated, particularly if we expect all those newly emerging democracies that are encompassed within the framework of the European Convention on Human Rights to observe the rule of law in the same way as everyone else. We cannot pick and choose the judgements that we observe.
I very strongly subscribe to the view of the European Human Rights Commissioner, Commissioner Thomas Hammarberg. I read one small sentence of his views:
“Prisoners, though deprived of physical liberty, have human rights. Measures should be taken to ensure that imprisonment does not undermine rights which are unconnected to the intention of the punishment”.
He goes on to elaborate on that. That is fundamentally important.
This has been an excellent debate, and I am truly grateful to my noble and learned friend Lord Irvine of Lairg for initiating it. I hope, because of the importance and utility of this debate, that the Minister, when he winds up, will perhaps tell us that, after the six-month presidency of the Committee of Ministers, when we have an agenda for reform, he might well produce a report and score sheet on our activities during that period, and then arrange for a similar debate early in 2011.
My Lords, first, I apologise to your Lordships and to the House for being out of order in seeking to intervene at an early stage, which was plainly the wrong time to do so. If I may, I will now put a brief question to my noble and learned friend Lord Irvine of Lairg—indeed, I hope it will also be addressed by the Minister. The noble and learned Lord referred in his speech to the judges doing what Parliament instructed them to do. He will recall, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Scott of Foscote, and others reminded us, that when the clause that became Section 2 of the Human Rights Act 1998 was before Parliament, he and his fellow Ministers repeatedly advised the legislature that it meant what it said—the noble and learned Lord, Lord Scott of Foscote, has referred to this—that the courts of the United Kingdom had to “take into account” any relevant judgment or opinion of the Strasbourg court. Ministers, including my noble and learned friend, said that those judgments and opinions were not to be treated as a strictly binding precedent for the United Kingdom courts.
My question is this: is the noble and learned Lord—and is the Minister—able to reconcile that advice with certain recent judgments of both the House of Lords and the Supreme Court that hold that the UK courts had no alternative but to apply definitive judgments of the Strasbourg court? As the noble and learned Lord, Lord Rodger of Earlsferry, put it in a case in 2009, which was quoted with unanimous approval by the judges in Horncastle:
“Strasbourg has spoken, the case is closed”.
My question is: is that what Section 2 of the 1998 Act must now be taken to mean?
My Lords, it has been an impressive and important debate. Not one speaker suggests that we leave the European convention or resile from the incorporation of the convention rights that we have incorporated into our law.
I join noble Lords in congratulating my noble and learned friend, Lord Irvine of Lairg, on procuring this debate. There are people who have played their part in procuring the incorporation of the human rights convention into our law. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, are among them. However, one person above all others stands out in procuring it as part of our law. There is no doubt that it would not have become a part of our law without him—the noble and learned Lord, Lord Irvine of Lairg.
I point to two particular things that the noble and learned Lord did. First, he persuaded my party—and we were the only party who took this view—that we should make it a part of our commitment to the future. He did that by persuading Mr John Smith and Mr Tony Blair, and when we got into Government he made sure that it happened. Remember, this sort of law is not popular among politicians. I can assure you, having been there, that without the noble and learned Lord, Lord Irvine of Lairg, it would not have become a part of the domestic law of this country. I agree with my noble and learned friend Lord Hart of Chilton that it is better than any statue or portrait that one has the Human Rights Act 1998 as one’s achievement. The Act has had a profound effect on our law and on the culture of our constitution. The right reverend Prelate the Bishop of Bath and Wells might well be right when he says that it provides a positive contribution to humans on a spiritual journey.
The twin pillars of our constitutional settlement are our parliamentary democracy and the rule of law. The rule of law carries with it two principles. The first is that the conduct of individuals should be judged in accordance with the law applied equally to all by an independent judiciary. The second is that each of us is entitled to have our human rights protected. The incorporation of the convention into our domestic law confirmed that the rule of law did indeed carry with it the entitlement to the protection of our human rights, and it provided, for the first time in English law, a definition of what those rights were.
For all the strengths of the common law, it had never, before the Human Rights Act 1998, offered a comprehensive definition of what an individual’s human rights were. In consequence, it had not provided to the individual protection of those rights. Real protection of human rights can come only from the law and not through politics. Politics reflects domestic democratic tides. Politicians are swayed by what is popular. The people, or a majority of them, will frequently favour courses that do not respect the rights of individuals. If the rights of individuals cannot be protected against the state expressing the will of the majority, irrespective of an individual’s rights, there is in reality no adherence to the rule of law. I strongly agree with what the noble Lord, Lord Pannick, and my noble friend, Lord Wills, said when they said that one of the purposes of our convention is to protect people who are unpopular and who the majority, given a chance, would not protect.
The effect of introducing the convention into our domestic law is that there is immediate and real protection for people’s basic rights. Let me give just one example. In the mid-1990s, three members of our Armed Forces were investigated by the military because it was thought they might be homosexual. The investigation discovered that they were homosexual and they were dismissed from the forces. They appealed to the English courts, saying, “This can’t be right”, and the English courts said that it was not right, but nothing could be done about it because no part of English law protected them. The men went to the European Court of Human Rights, which held that their treatment was a breach of the convention, but the court could do nothing for them, because it happened just before the convention had been introduced into our domestic law. Now the position is different. Such rights can be enforced in our domestic courts. As a consequence, when people talk about human rights, the “basic fundamental rights”, as Lord Bingham described them, exist and there is protection.
Since the Human Rights Act has been passed and these rights have been incorporated into our law, they have been the subject of sustained criticism and attack—not just because the media want to publish salacious stories, but because, in essence, the rights are frequently there to protect people who cannot protect themselves because they are not powerful enough or are unpopular.
The right to privacy comes from the convention. It is a right that prevents the publication of personal secrets. It is a right that prevents the newspapers revealing that a child has AIDS. It is a right that allows you to make telephone calls without someone else listening in to see whether they can publish the contents of those calls. It is a right that allows you not to have your voicemail box hacked into by the press. It is a right that allows you to live your family life behind closed doors without anyone knowing what is going on.
My noble friend Lord Prescott put his finger on it when said that we can make a choice as a society; we can say that press freedom is so important that anything goes and you can publish anything you like about people’s lives, or you can make the choice that we rightly make whereby certain things are private and should be kept private. If you are serious about a right to privacy, it has to be enforced by the courts. That means looking at each individual case and asking, “Is this part of someone’s private life?”. If it is, we will protect it unless there is a public interest—for example, if that person is taking a hypocritical, commercial or political stance that entitles people to know about it. Otherwise, they should be entitled to privacy. The only way in which that can effectively be enforced is by the courts looking at each case.
The consequence of my noble and learned friend Lord Irvine’s courage is that that is effectively the current law. Do not change it. Do not listen to the beguiling appeal of the press, which says, “We want to be able to tell you which footballers are having affairs, even though we know it will damage their children. They should have thought about that before they had the affairs”. How does that protect their children? There may well be footballers who are acting purely for commercial interests, but the courts can draw the balance between the two.
The effect of incorporating the European Convention on Human Rights is that we have a law that is there and is sensible. The attacks on the judges are, with the greatest respect to those who do so, utterly misplaced. All those noble Lords who have said in this debate that the judges are only doing what the law says are absolutely right. That is but one example of the effects of incorporation. There are so many. For example, the European convention ensures that you will not be separated from your wife when you are elderly because it is convenient for the local authority to put one of you in one care home and one in another. That would be a breach of Article 8. The convention also helps you if, for example, you are in a care home and left for long periods on a commode because the local authority will not provide adequate care for you. That is part of your personal dignity which the Human Rights Act ensures will be protected.
The effect has been not only on individual rights but on the culture of the courts. No better example was given than that given by my noble friend Lady Kennedy of The Shaws on the comparison between Belmarsh, where the judges see themselves as having to protect individual rights, and Liversidge v Anderson, where the judges, in the middle of the war, saw their role as being simply to back up the Executive. That is a very significant change.
What changes have been suggested? It was suggested that the European Court of Human Rights act more quickly—I agree. More money should be spent on it—I agree. There should be better parliamentary scrutiny—I agree. The margin of appreciation issue should be addressed—yes, but that does not require a change in the law. The coalition has set up a commission of distinguished people, including the noble Lord, Lord Lester, and the noble Baroness, Lady Kennedy of The Shaws. They will ensure that incorporation is not retreated from. However, I think this is a mistake. The important thing is to defend the principle of those rights and their incorporation into our law. Setting up the commission raises expectations that something will change when, as I understand it, it does not intend to change anything.
I ask the Minister to give a guarantee that the Government are not going back on the incorporation of human rights into law. He will give that assurance because he is a decent man who represents a political party that is not going to go back on incorporation. Do not create the expectation that we are going to change the position. Say that we are proud that we incorporated these rights and that it has made a real difference. It was a moment in time when we did it, because my noble and learned friend was there and he managed to achieve it. It would never happen now, because political parties are not brave enough, but there is no going back. That is a very good thing, and I hope that the noble Lord, Lord McNally, will say so.
I love following the noble and learned Lord, Lord Falconer, because he always finishes as if he has made the final case for the prosecution in some case where the poor mutt in the dock has to stand up and say, “I did it; I did it”.
It is always a little daunting for a non-lawyer—like the noble Lord, Lord Wills, I am a non-lawyer—to reply to a debate opened by one former Lord Chancellor and closed by another former Lord Chancellor, and with half the contributions coming from QCs. Our learned friends were truly out in force. That is partly a tribute to the noble and learned Lord, Lord Irvine, and the standing that he still holds in the legal profession and more widely. I was delighted when I saw his name down for this debate, because I knew that it would attract speakers of quality and knowledge about the issue. When opening the Second Reading of the Human Rights Bill, he said:
“People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom”.
That is in no doubt and it is the major success of the Act. He also said that he hoped that:
“A culture of awareness of human rights will develop”.—[Official Report, 3/11/97; col. 1228.]
That has not happened sufficiently so far.
I would recommend reading the part of the speech of the noble and learned Lord, Lord Falconer, before he reached his grand peroration. There he set out in a list, as did the noble Baroness, Lady Whitaker, our human rights and how the Human Rights Act protects the rights of individuals. Of course the media are always going to find cases whereby the seemingly most undeserving rascal is given protection. However, in some ways, that in itself is what makes us a civilised society—we give guarantees in those cases, not always just to the saintly and the deserving.
I welcome the contributions of all speakers today and I think that they will help those who take the trouble to read the debate. I hope that our distinguished commission will take the Hansard report of this debate as useful evidence, because there have been many contributions which deserve recognition.
The noble and learned Lord, Lord Falconer, rightly paid tribute to the noble and learned Lord, Lord Irvine, over the birth of the Human Rights Act. The noble and learned Lord, Lord Irvine, in his turn, was generous in his tribute to the consistency of my party on these matters. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kirkhill, among others, valuably pointed out to us the history of the Conservative Party with regard to the European Convention on Human Rights. I recently attended a dinner at Gray’s Inn, at which Sir David Maxwell Fyfe’s daughter was present. A treasure trove of long letters had been found that Sir David had written from Strasbourg about the creation of the Human Rights Act in the days before the internet and before it was so easy to make telephone calls. It was very moving to have his family there and to hear about his commitment and about how Churchill pushed and guided him on these issues. Therefore, I hope that, when we debate this matter, we remember the various contributions that the parties have made.
In answer to the noble and learned Lord, Lord Falconer, I have never said that the Human Rights Act is some precious vase that should be kept on a high shelf and never be looked at. Indeed, I think that the greatest damage that could have been done to it would have been to allow the various criticisms of and attacks on the Human Rights Act and the convention to remain unchallenged and unexamined. Therefore, we have taken it down from the shelf and have put it in good hands to be examined. I hope that this debate serves as an illustration of the kind of informed discussion that we want on how the Act works and how it impinges on our system of justice.
A number of issues have been raised and I shall try to deal with them. Prisoner voting was referred to by the noble and learned Lord, Lord Irvine, and the noble Lords, Lord Prescott, Lord Faulks, Lord Goodhart and Lord Ramsbotham. The old ministerial fallback position of “We are considering the position” is as far as I can go on that, but I am not sure that it is a particularly edifying exercise. The other night, I watched an excellent documentary on BBC Four about the abolition of the death penalty in this country. In a way, I came to the same conclusion that the noble and learned Lord, Lord Falconer, came to about the passage of the Human Rights Act. I doubt whether this Parliament would abolish the death penalty in the way that Parliament did in the 1960s. However, that does not mean that in my opinion Parliament has not improved over the past 40 years or so in terms of its courage in addressing some of these issues.
I liked the statistic that at the recent general election in Ireland every prisoner had the right to vote but only 0.5 per cent exercised it. On the sex offenders register, my ministerial fallback position is that we are looking at the implications of the judgment. However, I also note that it has been applied in Scotland for the past year. Before I leave the subject of prisoner voting, and before people get ready to castigate this weak, flaccid and vacillating Government, I look at the Lord Chancellor who sat on the judgment for six years and did nothing.
The debate on press complaints was useful. The contributions of the noble Lords, Lord Prescott and Lord Black, showed the two sides of the debate that is to be had. The Press Complaints Commission has a job to do in convincing the public that it can be the robust, independent regulator that it was agreed it should be when the special arrangements were made at the passing of the Act. The implications of Section 12 were drawn to my attention. Section 12 asks courts to give proper regard to public interest, and I think that the question of whether that needs sharpening and defining will bear investigation.
I am not supposed to tell your Lordships that the Master of the Rolls is going to deliver his report tomorrow. Government secrets are not what they used to be so I shall be very surprised if he does not deliver it tomorrow, as the Daily Telegraph has already said that he will be doing so. More seriously, I hope that we will be able to look at what he says about procedure with a view to making it more effective—a point emphasised by the noble and learned Lord, Lord Falconer—as well as looking at the procedure for super-injunctions. The noble and learned Lord pointed out that super-injunctions can be issued in secret without the press being able to make their case, and I suspect that the Master of the Rolls will be looking at that, and properly so. However, let us wait to see his recommendations. They will certainly be treated extremely seriously.
The noble Lord, Lord Dubs, and I have discussed the Northern Ireland Bill of Rights before. It was a commitment in the Good Friday agreement. However, I think that successive Governments have said—as has been said about so many things in relation to Northern Ireland—that, when we can get agreement in Belfast, there will be no problem on that issue.
On the specific question of the sex offenders ruling, further to the Home Secretary’s Statement in the House of Commons on 16 February, the Government will shortly bring forward proposals to implement the ruling of the Supreme Court. However, a robust review, led by police and involving all relevant agencies, will be carried out so that a full picture of the risks to the public can be considered. Sex offenders who continue to pose a risk will remain on the register, and will do so for life if necessary.
I turn to the points raised by the noble Lord, Lord Prescott and Lord Black. The noble Lord, Lord Black, said that the law was reasonably easy to apply to the print media but very difficult to apply to the new technologies. This matter is also being tackled by the Joint Committee on the Defamation Bill. Some of the recent publicity about super-injunctions illustrated that it is difficult to track down messages on the new technologies. I am beginning to sound like a judge now, aren’t I? As I even have to ask my son James to send texts for me, you will know why I struggle with these things. But new technologies make it difficult to make the law applicable. We are consulting widely on that and I hope that we will have some agreements, certainly about the internet—guarantees that prevent some of the abuses that have arisen in terms of libel law and freedom of speech in that regard.
I was interested in the interventions of the noble and learned Lord, Lord Scott, and the noble Lord, Lord Tomlinson. I will not presume to make judgments on the matter any more than the noble and learned Lord, Lord Irvine. The noble Lord’s warning was about whether it was worth making the court rulings as subjective as the noble and learned Lord, Lord Scott, seemed to suggest, so that we lost the powerful leverage that the court’s judgments have on human rights across Europe as a whole. That debate will go on. The noble Lord says that you cannot pick and choose; the noble and learned Lord, Lord Scott, says “Persuasive, but not binding”. Our Supreme Court has said that, to get things right, it will follow Strasbourg decisions as it generally does, unless the effect could be inconsistent with a fundamental substantive or procedural aspect of our law.
I will just check quickly through my notes whether I have missed any points that noble Lords made. On the list of good things, I had not realised the real benefit of the Human Rights Act as it applied to courts martial, as spoken about by my noble friend Lord Thomas. He also made interesting comments about Hong Kong.
In reference to the point made by the noble Lord, Lord Pannick, perhaps it needs saying that respect for the rule of law includes total respect for the independence of the judiciary. Occasionally individual Ministers—it has happened in other Governments as well—get tetchy about what judges do, but we should not get too excited that that is somehow an assault on the judiciary. Until 12 months ago I did not regularly mix with the higher ranks of the judiciary, but since then I have had some experience of them. They are fairly tough old characters, so I think that they can stand the occasional word of criticism—as politicians occasionally get words of criticism from the Bench. It is a good and healthy dynamic tension.
I was pleased that the noble Lord, Lord Faulks, spoke, because it was important that the debate had the case for the prosecution, as it were. Has the Act been trivialised? Has there been too much acquiescence by our courts—a kind of mission creep? He made the case for a proper examination of the Act, and that is what we intend to do in bringing forward the commission to look at it.
The noble Lord, Lord Wills, made a point about human rights protecting the unpopular and the minority. That is the essence of a civilised society, as I said before.
By the way, I have just remembered the bit of technology I had forgotten: Twitter. Twittering is hard to track down. The other day I was at a meeting of senior high-tech advisers, and I kept talking about biscuits. Nobody said anything until, in the end, one of them said, “What was that about biscuits?”, and I said, “Where they store all this information”. He said, “Those are cookies”, and then all the experts confessed that they had not interrupted because they thought that the Minister must know about some new technology that they were not aware of.
I am always petrified because the noble Lord, Lord Tomlinson, finishes his speeches with a pointed finger and a question to the Minister, but this time it is easy. I will report back to the Lord Chancellor about the piece of European skulduggery that he outlined in terms of financing. Of one thing we are certain. Ken Clarke went recently to a meeting of the Council of Europe’s body in Izmir in Turkey and outlined our ambitions for reform, and the response was extremely encouraging. We will make a really determined effort during our presidency to press the case for reform, advised by our commission.
Let me end as I began. We are deeply in debt to the noble and learned Lord, Lord Irvine—first, for the Act; and secondly, for inspiring the debate. It has set the parameters of how we will look at the issues, safe in the knowledge that this country had an amazing role in creating the European Convention on Human Rights. We will go forward in the 21st century as firmly committed to that as the generation who, as was rightly said, experienced personally, at first hand, what happens when the state gets out of control—when it does not have checks and balances, and when there are no human rights.
Civil Legal Aid
My Lords, I declare an interest as an unpaid consultant in the firm of solicitors of which I was previously senior partner, and which practises in part in the area of legal aid.
We follow a debate on human rights with a debate on one of the most fundamental human rights—access to justice. I say immediately that the credit for this Motion coming before your Lordships’ House today belongs not to me, but to my noble friend Lady McDonagh, who drafted it and would have moved it had she been able to do so. Alas, she is not able to be present today for personal reasons, so I am in a sense instructed by her—a familiar condition for me, because she used to instruct me on behalf of the trade union for which she was an officer many years ago, and after that as general secretary of the Labour Party. I follow my instructions today with perhaps a little more alacrity than I did in that former case.
The legal aid system was one of the great pillars of the post-war welfare state. At one time affording access to justice to 80 per cent of the population, it has undergone many changes in the past 62 years. Currently, around 36 per cent of the population fall within the financial eligibility limits—both income and capital—for legal advice and assistance, or representation in matters of civil law. Some areas have long been excluded from the civil legal aid system, including most personal injury claims, which ironically were removed from the system's scope because of the conditional fee system that the Government now propose to abolish in the guise of an attack on the so-called compensation culture, the extent of which is surely exaggerated.
Last week, I confessed to having form in the matter of police reform. I have a similar confession in respect of legal aid. My noble friend Lord Bach will recall that I was responsible for a debate at a Labour Party conference which was somewhat critical of the previous Government's legal aid policy—this was just before he became a Minister responsible for it—and chaired a very constructive working party that made some improvements to that policy.
At present, legal aid and advice are available across a wide range of issues, including debt, employment, housing, education, family law, immigration and clinical negligence, and more besides. In some of these areas, legal aid does not extend to representation: in others, it does. The total cost is around £900 million a year for civil legal aid and £1.2 billion a year for criminal legal aid. The Government's Green Paper on legal aid reform proposes a massive cut in the civil legal aid budget of £279 million, with a much smaller reduction of around £71 million in the criminal legal aid budget. It achieves this by substantially reducing the scope of the scheme across most of the categories currently covered, while several categories are removed entirely.
The effects are stark. The Government's assessment of the number of individuals affected by the withdrawal of access—not the overall number, which would include family members—is around 500,000 to 550,000. This figure appears to understate the real effect by around 150,000, based on the latest Legal Services Commission data that show that some 725,000 cases will not be assisted. The Legal Action Group’s estimate is 650,000—still substantially more than the Government's estimate. No doubt those figures reflect rising demand stemming from the effects of the recession both in terms of the need for advice and the increasing numbers becoming financially eligible.
What are the implications of this massive cut—around 70 per cent—in the number of cases for which funding will be available? In round figures, funding will be available for 250,000 fewer cases involving family disputes; 140,000 fewer cases involving welfare benefits; 110,000 fewer cases involving debt; 50,000 fewer cases involving serious housing problems; and 30,000 fewer cases involving employment problems. The impact is concentrated on the poorest. Currently, 80 per cent of legal help cases and 90 per cent of cases where legal representation is funded involve the poorest 20 per cent of the population.
No doubt other noble Lords will give examples of the kind of cases for which assistance will no longer be available. I will confine myself briefly to four. In the area of housing, tenants will not receive help in securing the repair of their homes; in the area of education, the parents of disabled children will not be helped to secure proper provision from the education authority; in the area of employment, help will be available only in discrimination cases; and in the complex world of clinical negligence, no claims will be assisted, not even those of children.
The Government believe that greater reliance on two factors, mediation and the support of voluntary organisations, will substantially mitigate the effects of the draconian cuts. However, mediation already exists—it has to be considered now by the parties and the courts—yet only in some 4,000 cases a year is it adopted. Moreover, as I remarked when we discussed the Statement launching the Green Paper, mediation is not suitable when, as in many family cases, there is disequilibrium in the material or psychological resources of the parties, with the pressure on the weaker party to agree often being irresistible. By definition, the objective of mediation is agreement, not adjudication.
As regards alternative sources of support, law centres and Citizens Advice, too, are under extreme financial pressure, both from the withdrawal of government funding implicit in the proposals of the Green Paper and from local councils struggling to cope with the largest ever reduction in government grants. The Law Centres Federation anticipates a loss of something over 50 per cent of law centres’ income, and there is a fear that 50 out of the 56 existing centres may be forced to close if the Green Paper proposals are implemented. Many are already struggling with cuts in grants from local councils such as Birmingham or Hammersmith and Fulham, where the entirety of local authority funding has been withdrawn. Citizens Advice faces similar pressures at a time when demand is increasing.
The Government rightly claim that our legal aid scheme, when compared internationally, is one of the most, if not the most, generous. However, as the Bar Council points out, if one looks at the cost of the justice system as a whole, adding the cost of the courts to the legal aid bill, the gap is much narrower. Reducing the costs of administering the system should be the first priority. Paradoxically, the reduction in legal aid and advice might drive up costs, as the courts contend with the problems of dealing with litigants in person. International comparisons of expenditure are inevitably rough and ready, taking little or no account of different legal systems, let alone different social and economic structures or pressures. Citizens Advice, in its response to the Green Paper, demonstrated that the taxpayer saves substantially by investing in legal aid. In the case of housing, the saving is £2.34 for every £1 spent on legal advice or legal aid; in the case of debt, £2.98 for every £1 spent; in the case of benefits advice, £8.80; and in the case of employment, £7.13.
Clearly, the justice system cannot be immune from the pressure to engender savings at a time when deficit reduction is a given, even if the scale and timing of reductions continue to be contestable issues. However, I urge the Government to consider very carefully the Law Society's proposals for savings. It identified £249 million-worth of savings for the Ministry of Justice from a range of measures, including improving the efficiency of the prosecution service and capping an individual lawyer’s fees derived from legal aid. In addition, it accepts £62 million of the savings that the Government propose in the Green Paper, plus further savings from barristers' fees. I observe that the Law Society is rather quick to suggest reductions in barristers’ fees; its enthusiasm may not be shared by the Bar Council. In addition, it suggests areas where revenue can be raised: for example, by a modest 1 per cent levy on the alcohol industry, which contributes significantly to the need for legal services not just in the criminal courts but in such areas as family law, housing, debt and welfare—or, on another track, by simplifying housing law. It estimates that £158 million could be raised from a variety of such measures. If all the savings suggested by the Law Society were to be adopted and implemented, they would bring a total of £469 million-worth of savings—substantially more than in the Government's proposals contained in the Green Paper.
There may be other ways of contributing to reductions in the civil legal aid budget. In earlier days, legal aid lawyers suffered a levy of 10 per cent on their costs, as eventually assessed by the courts or agreed with the other side. Perhaps we could revert to that system to generate money for the legal aid fund: or perhaps we could introduce a contingency fee system under which legally aided clients would contribute a proportion of their damages or sums that they recover to the legal aid fund, but preferably not to their lawyers. I recall suggesting such a scheme at a meeting where my noble friend Lord Boateng, then a Minister in another place, had roundly denounced fat-cat lawyers. Speaking, as I said at the time, as a moderately plump-cat lawyer, I thought that my proposal was worth investigating. He did not, and it was not: yet it still seems to me that such a system, coupled with the former practice that cases had to be independently assessed by practitioners as having a reasonable chance of success, and authority obtained to incur significant expenditure, would be better than the conditional fee system that is supposed to incentivise lawyers to undertake weaker cases—on the grounds that swings and roundabouts would apply—many of which might fail. Those cases would be subsidised from the fees from cases that they won. Of course, the conditional fee agreement is now to go.
The Lord Chancellor has made a refreshing start on reforming penal policy, distancing himself from both his Conservative and Labour predecessors. I applaud him for that, though not for yesterday’s unfortunate pronouncements, but in this area of civil legal aid, he is in danger of making a grievous error. In the words of the current Lord Chief Justice, the proposals fail,
“to recognise the depth of the problem”,
“the proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system”.
Consider the following from the Jackson report from which the Government have cherry-picked recommendations about costs and conditional free agreements:
“I do not make any recommendations … for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cut backs in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate cost in key areas”.
Those are very salient words from a distinguished judge looking at this key issue of public policy.
I have quoted the present Lord Chief Justice, and I conclude by referring to a most distinguished predecessor, the noble and learned Lord, Lord Woolf, who is not in his place today. Two or three years ago, the noble and learned Lord published a volume which is a distillation of his jurisprudence, wisdom and humanity. It is called The Pursuit of Justice. The title is derived from the biblical injunction:
“Justice, justice shalt thou pursue”.
I hope that this House in the course of this debate will endorse that sentiment and urge it on the Government.
My Lords, I should begin by declaring an interest as a practising barrister and also as chairman of research for the Society of Conservative Lawyers and editor of a pamphlet submitted to the Government and the Ministry of Justice as part of the consultation process in relation to the Government's proposals for the reform of legal aid.
The Government must cut £350 million by 2015. Although comparisons are not easy, we spend much more on legal aid than countries of an equivalent size and economic status. Legal aid, like other areas of government spending, must bear its share of pain. I agree with the Government that court proceedings should be very much the last resort and that encouragement should be given to people to seek remedies by other means.
The party opposite has accepted that had it been in power—I rely on what the shadow Minister in the other place, Sadiq Khan, said—there would have to have been significant cuts in any event. However, consistent with its approach generally, there has been a lack of specificity about where those cuts might fall, thereby leaving plenty of room for manoeuvre to criticise the proposals that the Government have put forward.
However, I welcome the debate secured by the noble Lord, Lord Beecham, and give credit to him and to the noble Baroness, Lady McDonagh, for initiating it. If one accepts that cuts have to be made, the question is where the axe should fall so as to cause the minimum of pain and to try to ensure, so far possible, that there remains meaningful access to justice. I share the concern of, I suspect, many noble Lords that the vista of unrepresented litigants will not necessarily be much of a saving in terms of the administration of justice. Cases tend to take longer and sometimes there are appeals on difficult points.
There is little time to deal with all the many issues that the Government's proposals involve. I shall refer to two. The first is clinical negligence. Some clinical negligence cases are of immense complexity—to take an example, an obstetric case which may result in a brain-damaged baby. These cases will involve myriad experts, quite rightly. They will include obstetricians, midwives, neuroradiologists, paediatric neurologists and neonatologists. A great deal of expertise is needed from them and from the lawyers to investigate what is often a very difficult matter: whether there has been a departure from the appropriate standard of care and, often even more difficult, whether such departure has or has not caused damage. An enormous amount of literature has been generated by this. It really does involve a great deal of skill. Very often the conclusion is reached by lawyers that there is no case, and the matter does not go forward. There is not to be any legal aid, even for the investigatory steps, and I suggest that is potentially going to cut off some very important cases. It means that those who really need compensation in the years to come may well be denied.
The Government’s answer is the CFA system, but because of the changes in the CFA system that they propose following the partial implementation of Jackson, it will be very unattractive for many lawyers to take these cases. I fear that the limit to the success fee—25 per cent of damages excluding really sizeable amounts—and no recovery of after-event insurance mean that many firms are going to restrict their activities to very straightforward cases of egregious errors, the sort of cases, in fact, that would attract claims managers rather than responsible and experienced lawyers. I suggest to the Minister that if he does nothing else as a result of my observations he goes back to Sir Rupert Jackson and asks him whether he would approve of this effective pincer movement on those very worthwhile cases that are going to be prevented as a result of the Government’s changes.
I will have to deal with my second point very briefly. The tone of the Government’s response seems to suggest that there is some possibility of additional funding in cases where they may feel that they would be in breach of treaty obligations if they did not do so. Reading the subtext, I take this to be a suggestion that anything to do with Human Rights Act cases may still require legal aid. There are some very important Human Rights Act cases, but let me tell the House that there is an enormous number of very trivial Human Rights Act cases. The Government should not be frightened to say that if cases are not serious, do not involve large amounts of money and are not truly human rights issues, there should be no legal aid for them. There would be savings that could be better spent elsewhere.
My Lords, I wish to focus on one particular aspect of the Government's plans for legal aid: the proposal to take social welfare law out of scope. Of the cuts to be made, more than £l00 million will be cut from social welfare legal aid and, as a result, most social welfare law and legal advice will no longer be covered. I want to draw attention to the context in which these proposals are being made. The Welfare Reform Bill is currently making its way through another place. Its proposals are, frankly, a revolution in welfare benefits. Even the DWP, which is not given to overstatement, has described the Bill as,
“the biggest change to the welfare system for over 60 years”.
The Bill will abolish most of the income-related benefits we know about—income support, jobseekers’ allowance, employment and support allowance, tax credits, housing benefit and council tax benefit—and replace them with a single benefit called universal credit, many of whose key features are not yet clear, even though the Bill is about to come out of Committee in another place. There will also be other changes. There will be more conditionality for people already in jobs. Noble Lords will be aware of tests already being used to determine whether people are entitled to disability benefits. There is a dramatic change in the shift to local decisions on a range of benefits and provision, and there are proposals on the table which would significantly reduce access to the statutory system of child support. These proposals combined will dramatically change the landscape for poor people over the next few years.
My concern is that when Governments make changes on this scale, mistakes inevitably happen. It takes time for those administering new systems to calibrate the decisions that they make and to understand whether new systems will in fact achieve what they are meant to achieve. Many of the decisions made turn out in practice to be good. Others turn out not to be. Having those tested in court or tribunal often helps government as well as individuals understand what Parliament intended. Benefits law is very complex. The new system may be integrated, but anyone who has read the Welfare Reform Bill will know that that will not make it simple. It will simply make it integrated and complex rather than separate and complex. If someone is to challenge a decision if they have their benefits rejected or stopped or they are sanctioned in some way, they will need advice. The evidence is quite stark about the difference in success between those who are represented and those who are not, which is something that will presumably come as a relief to the many lawyers in your Lordships' House. Given all those changes, does this feel like a good time to stop providing advice and help to benefits claimants in those settings? I think not.
As well as the fact that benefits recipients tend to be poor, legal aid is targeted at poor people. Therefore, these changes clearly target the poorest people in our country. I am also concerned, as the CABs have pointed out, that the shift in the criteria for civil funding is moving towards crisis points, such as imminent homelessness, and away from the kind of legal help and advice which might prevent someone becoming homeless in the first place. That does not seem to be a sensible move.
Ensuring the rule of law, as is often observed, is one of the foremost duties of the state. But a citizen who cannot challenge a wrong decision by the state simply because they have not got the money cannot depend on the rule of law. That does not mean unlimited spending on legal aid; but it does mean that one does not remove from the scope of publicly funded legal support an entire aspect of law which is fundamental to the dignity and survival of some of our poorest citizens.
When the Welfare Reform Bill comes to this House, I hope very much that the considerable expertise around these Benches will be deployed in scrutinising it very carefully. It is substantial legislation and its changes will make a big difference to the lives of millions of people who depend on benefits. It is the kind of thing that this House does very well and I am sure that the Bill will not emerge in the same state as it came in. But what is the point of our spending weeks of parliamentary time scrutinising legislation, if, in practice, those who are affected by it have no means to ensure that Parliament’s intentions are implemented?
I would ask the Minister to consider one thing in particular. If the Government will not move on these reforms in general, will he consider at least making no changes to the provision of legal aid, advice and help to benefit claimants at least until two years after the Welfare Reform Bill has been implemented in full? The very least people expect is that if Parliament makes decisions, they should be able to get justice according to them.
My Lords, there is no point in cutting legal aid if the effect is to increase government expenditure in other areas and at the same time deny access to justice. The Green Paper proposes a radical reduction in the scope of private family law issues for which legal aid will be available. That policy is based on a false premise; namely, that spending on legal aid fuels litigation and that the only alternative is mediation.
Family lawyers, as a group, are committed to settling cases out of court as expeditiously as possible, often by referring clients to mediation, but, more frequently, negotiating settlements themselves. In my early days as a solicitor, I was much involved in that sort of work. The Green Paper entirely neglects the current important role of lawyers in non-court-based resolution of legal disputes, particularly financial and custody disputes. It is very probably because clients were able to see a solicitor that litigation was avoided in many cases. Without professional guidance, ill founded and certainly ill prepared litigation conducted by the client in person will inevitably follow. That will mean a very substantial rise in the number of litigants in person in the family courts. Sir David Norgrove, chair of the Family Justice Review panel, in his interim report, which was published recently, has emphasised this point.
Those who lack the personal energy and other resources to take on litigation by themselves would not get access to justice at all. Those who have not been able to enforce the other party’s private law responsibilities for support and so on inevitably fall back on the state for housing and support, so that is where more state expenditure is incurred. One reason why mediation is currently successful is that the threat of litigation encourages people to adopt sensible positions in mediation or in settlement discussions. With that threat effectively removed in many cases by the removal of public funding for legal representation, successful mediation will be severely hampered.
Legal aid is to be granted where there is physical violence. There is an obvious perverse incentive for people to allege domestic violence just to get access to funding for their other issues. The other side to the argument could say, “Well, I never did that”, which will increase more contested court proceedings. Many women who do not disclose domestic violence that they have suffered, or refuse to apply for injunctive relief in relation to it, will not get a proper and safe resolution of the issues. The very class of person which the Green Paper most wants to protect will be left unprotected and in potentially extremely dangerous situations. Domestic violence very often comes to light only through the lawyers’ handling of the case when they learn it from a client who has kept it concealed from their family. Mediation in such cases will not work and should not be tried at all.
Medical negligence cases have played a very important role in improving health care by setting standards, publicising deficiencies and punishing failures. The thalidomide case is a very good example. In many cases, new procedures have been introduced and developed as a result of litigation. According to the Green Paper, taking clinical negligence out of legal aid would save £17 million.
Of the 500,000 avoidable incidents in England alone, as estimated by the DoH in 2009-10, the National Health Service Litigation Authority received only 6,652 claims. Expert solicitors who handle these claims will decide in 75 per cent of them that there is no case. Sometimes there is negligence but no injury and sometimes there is injury but no negligence. It is not possible to assess the chances of success in clinical negligence cases at the start of the case. There must be funding to find out if there is a case and for the higher cost cases. I follow the noble Lord, Lord Faulks in his pointing out that whether the issue is negligence or causation, expensive expert medical evidence is required to establish a basis for the claim before a decision to proceed is made.
The Government propose to remove legal aid for clinical negligence at the same time—I repeat, at the same time—as changing the no-win, no-fee agreements. I am grateful to the noble Baroness, Lady King, who pointed out to me that children who were said to be still covered for clinical negligence cases are not to be, on which I am sure she will expand. When Sir Rupert Jackson published his proposals, he said:
“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than the present levels makes sound … sense and is in the public interest”.
His proposals are based on the continuing existence of legal aid. Its removal will deny access to justice to some of the most vulnerable groups in the country—children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.
My Lords, anyone who has had elected office as a Member of Parliament or as a local councillor will know how important it is to be able to advise constituents to go to a local law centre, Citizens Advice or even legal aid solicitors. It is perfectly clear that the Government’s proposals will hit the most vulnerable. All the figures point to that: 85 per cent of people who got legal aid were among the poorest 20 per cent of the population. It is clear that the vulnerable will be hit particularly hard. There is also the specifically even more shocking issue that there will be no more legal aid for children who are the victims of medical accidents or negligence.
It is clear that early intervention when people have difficulties is a much quicker way of resolving their problems. It is also more economic. To take the all-too-common case of someone who gets into rent arrears, if they get advice at an early stage, the situation can be dealt with and they do not become homeless. If it is left for too long, they would become homeless, at which point they may get legal aid, but it is costly for the public purse and awful for the individual concerned. We have already heard the statistics about the savings there could be from early intervention as opposed to leaving it late and more public money having to be spent.
I was shocked, as were other noble Lords, to learn that, in the Government’s view, domestic violence is now to be the gateway to receiving legal aid in relation to family law. This is turning the matter on its head because fear of violence often is the key issue—more than the violence itself. Certainly, people could turn this on its head and say that violence is being used in order to get the benefit or that such an accusation is being made.
It is increasingly clear that the procedures governing immigration, education, employment, welfare benefit and so on are becoming more and more complex. Certainly, going to a tribunal requires expert help and advice. Without it, most people will not be able to manage the process. Legal advice is helpful in that it can persuade people that, if their case has no merit, they will not proceed to a tribunal, so a saving is made. According to the Child Poverty Action Group, in 2010 some 50 new statutory instruments covering social security, housing benefit and tax credits were produced. These are complex matters and it is hard to see how people, with the best will in the world, can secure their rights without expert help.
It has been suggested by the Government that telephone advice might work. Of course it will work for some people, but anyone who has had a constituency knows that people come along to the surgery with their documents. They demonstrate their difficulties by showing you the bills they cannot pay and so on. It makes the matter much clearer than it would be on the telephone. Further, urging people to use telephone advice will be particularly damaging to the more vulnerable and the poorer social classes.
I shall finish on a specific issue, that of forced marriages. I attended a meeting here earlier in the week on this subject. These cases mainly concern women who are usually very vulnerable and have no money. By definition their families cannot help them because it is the families who are often the cause of the problem. What can these women do? We have the Forced Marriage Protection Order which can provide some help. But, frankly, accessing that order without legal help is virtually impossible. It is quite a widespread problem. Estimates of any accuracy are difficult to come by, but the joint Home Office/Foreign and Commonwealth Office Forced Marriage Unit was approached last year by nearly 2,000 women. Other estimates suggest that forced marriages may run at between 5,000 and 8,000 cases a year. The only safeguard, or bit of a safeguard, is the Forced Marriage Protection Order, and I do not understand how it can be accessed without legal help.
My Lords, when I arrived in the Lord Chancellor’s Department in 1998, my experience of legal aid had been limited to the pro bono activities of my firm, Herbert Smith, which, from a position of economic comfort, nevertheless looked across the City boundaries to the much poorer London boroughs of Tower Hamlets, Hackney and Islington, and made contributions to, among other things, local law centres. I shall come back to those in a moment. So it was only in 1998 that I realised the enormity of the legal aid problem, and that there was an asteroid with “legal aid” written on it advancing towards the Lord Chancellor’s Department.
Budgetary restraint that was increasing year by year meant that the greater priorities of health and education placed heavy restrictions on funds for legal aid. This was compounded by the fact that the first claim on such funds went to criminal cases where there was a priority to defend those who faced the prospect of loss of liberty. It was impossible to ring-fence a fund earmarked for civil legal aid. Yet, when I began to make visits to law and legal advice centres, to citizens advice bureaux in the inner London boroughs such as Tower Hamlets and Southwark, and to major cities outside London such as Bristol and Nottingham, I was immediately impressed by the need for greater investment in providing help and advice towards solving civil problems before they involved the courts.
The spiral of decline triggered by one event leading to another was all too obvious from the case studies I saw. For example, loss of income caused by unemployment could lead to debt, which in turn could lead to homelessness, which could lead to domestic violence and bring about marital breakdown, then to ill health in the short and the long term, both physical and mental, along with harmful negative effects on children and their educational performance, thus affecting their future life chances. Of course, the dominos do not all fall at the same time, but the spiral is well documented. I was particularly impressed by the work of Professor Dame Hazel Genn at University College London in her book, Paths to Justice, and she was a great help to the department in my day.
I also pay tribute to the selfless work of those in the law centres and agencies whom I observed at first hand. There were no handsome salaries to compare with the private sector and many were volunteers. Local authorities were unable to offer much help, and it was left to us to provide the seed corn. The law centres correctly pointed out that early advice and intervention could help break the spiral of decline. It was also self-evident that each of the components of the spiral brought with it economic costs for society as a whole. It therefore followed that early successful interventions would not only save costs, but also prevent problems escalating. A cost-benefit analysis outlined by Citizens Advice in July 2010 demonstrates the advantages of early advice in respect of housing, debt, benefits, employment and family. In monetary terms, the benefits are enormous and are real value for money, vindicating the principle and justifying the amount of civil legal aid as a worthwhile investment.
I am proud of the fact that the previous Government introduced the Community Legal Service and, notwithstanding the fact that they were faced with a growing need to effect savings in the legal aid budget, which they did, they always sought to protect social welfare law. My fear is that those who I saw making such a valuable contribution by providing immediate help to those in the most urgent need of it will now be faced with a setback from which it will be difficult to recover. In response to the suggestion that the voluntary sector will fill the gap left by the removal of civil legal aid in the proposed areas, I can see no evidence for such an assertion.
The legal profession can be justifiably proud of its record of pro bono activities. It has provided millions of pounds’ worth of endeavours in that respect. I have checked the policy of my former firm on what is now called corporate responsibility, and the corporate responsibility plan at my wife’s firm, Norton Rose. They are impressive policies, like many of those adopted by other City firms of solicitors, but they just will not be able to close the gap that will open up. In spite of the outstanding achievements of these policies, even all of the City firms put together will not provide enough to cover the expected shortfall in the inner London areas surrounding the City, let alone the rest of the country. We must also remember that local authorities are still strapped for cash and therefore unlikely to be able to help. I hope that the Minister will explain how advice deserts, as they have been called, in some of the most deprived communities in the country, are to be avoided. Without more civil legal aid, I cannot see how they can be.
My Lords, I also thank the noble Lord, Lord Beecham, for tabling this timely debate. I share the respect and admiration of the Government for the work of the voluntary agencies in this area, but as the previous speaker said, it is hard to see how they can meet the depth of need. I should like to concentrate on two issues, one of which is the separate representation of children in family court proceedings. It is important that, when parents are fighting with each other, the child’s voice is not lost. I would like a reassurance from the noble Lord that tandem representation of the type developed by the National Youth Advocacy Service is not denied to children because of these changes and cuts. I want also to focus on the impact of the lack of access to justice for young people and adults who have been in local authority care. Despite welcome investment and attention both in policy and legislation, for many young people, care has been an appalling experience. It leaves them vulnerable in later life to succumb to many of the problems that have been described today. Many of them deserve redress for the way they have been disappointed.
At a meeting held yesterday of young people in care, care leavers, foster carers and social workers, a young woman talked about being in care but separated from her siblings. There was another report of siblings being split between several different foster carers. We heard about the anguish of the young person involved as they lost touch with their siblings, and the sense that no real attention was paid to the need to keep in touch with brothers and sisters. We heard from a young man who had had 20 different placements during his years in care. Another young woman had had five different social workers within the last two years. We also heard about the instability that continues to affect care.
We also heard about the welcome report from Professor Eileen Munro into how social work can be streamlined and improved. I pay tribute both to this and the previous Government on their efforts, but there is a long way to go. In particular, we heard from a young mother whose child had been removed from her. We know that if a young woman is in care, she is far more likely to become pregnant during her teenage years and that her child is more likely to be removed from her. This young mother expressed her belief that the reason for her child being removed from her later in life was that her mental health needs had not been met while she had been in care. There is very clear evidence that when children are taken into care and have had trauma, they should be properly assessed by a psychiatrist or a clinical psychologist. They are not currently getting that proper assessment. The specialist looked-after children’s mental health teams that have been developed in recent years are expensive, complex to run and are only patchily in place. Many young people are not getting the support they need for their mental health needs in care. The young mother to whom I have referred went in person to the European Court of Justice over the case of her child being removed. Exceptionally, the court accepted consideration of her case.
We heard at the same meeting a barrister who had been in care speak about his admiration for a young person who had gone to court to seek redress from his local authority for the way that he had been treated and how he stood up for his rights.
I should like reassurance from the Minister that young people and adults who have been disappointed by the treatment that they have received in care can have access to justice in order to get the support they need; for instance, in paying for counselling and therapy.
It is very important that the voice of children in family courts is not lost, that they continue to have separate representation when that is appropriate, and that there is every opportunity for young people leaving the care system, and adults who have experienced it, to get redress for the way that they have on many occasions been denied their right to family life and for the disappointing treatment that they have often received.
My Lords, normally I do not trouble your Lordships on legal matters—they are way above my station. I normally speak on more lowly matters such as business and industry, science and technology. But on this occasion I felt that my noble friend's case was so strong and so compelling that I wanted to show my support. So with apologies to noble and learned Lords for trespassing on their territory, let me try to put this case in a way that we practical people see things.
The first thing that we look at are the numbers. Legal aid is a big number and is paid by a small department, the Ministry of Justice. Is this a true picture? In the world of business, we are pretty good at presenting numbers so as to project the impression that we want to give. Is this being done here?
Many noble Lords have spoken of legal aid in health, housing, employment and criminal negligence. Surely these are matters for their respective government departments, not all for the Ministry of Justice. If legal aid costs were allocated to these various departments, surely the costs would become much smaller—they would become minuscule. So I put it to the Minister that if the costs were allocated differently, the numbers might tell a different story.
We technologists are very keen on understanding the theory behind things, how they work and why they happen. We like to understand the cause so that we can foresee the effect. If there is a theory that we cannot understand, we rather think that there is something phoney behind it.
So what is the theory behind cutting legal aid? We know the effect, but what is the cause? Justifying it simply by the need to save money, as I think the noble Lord, Lord Faulks, was doing, is intellectually very weak. It will be to the lasting shame of this Government if we come to look back on things and say that the only reason that we could find was that we could not afford it. So can the Minister be intellectually more robust and explain these civil legal aid cuts in terms of the rights and wrongs of civil legal aid rather than just saying that we cannot afford it?
In my world, we are very keen on testing, both in theory and in practice. We are very suspicious of things that are done in a blinding rush before they can be tested, because that is the way that mistakes are made.
Now, we all know why this Government are in a rush. They have read Tony Blair's book, where he says that his biggest regret is that he did not get on with doing things straightaway. What he did not say in his book is that we spent a lot of time thinking and discussing our way through problems, looking at alternatives, consulting, learning from other people’s experience and trying out different ideas in White Papers and Green Papers so that the best one won, so that policies such as Sure Start came out of several false starts.
Everybody in my world thinks that that is the best way of ensuring success. I find this careful preparation and testing absent in the Government’s attitude towards civil legal aid. Surely we owe it to those who depend on it to search for alternative solutions, such as the reduction in costs mentioned by my noble friend Lord Beecham or the matters referred to by my noble friend Lady Sherlock and the noble Lord, Lord Thomas.
Other noble Lords have spoken about injustice, about unfairness, and they are of course absolutely right to raise it. But in my world we seek fairness not only because it is morally right but because, once it is absent, harm starts to happen. In the practical business world, when harm starts to happen, things start to go rapidly downhill. Purely to avoid trouble, will the Minister review the fairness and the injustice of the Government's decision?
It may well be that the Government do not care for that section of the community that depends on legal aid, so all the things that we have said do not really matter. But I do not think that that is the kind of society that we want to live in. It certainly matters to me.
My Lords, my noble friend Lord Haskel asked why these cuts were taking place. I want to quote to your Lordships something that Jonathan Djanogly, the justice department Minister in charge of legal aid, said at the Conservative Party conference last year. It shows an attitude to legal aid which is to misunderstand it. Mr Djanogly seemed to suggest that legal aid might be a good way of keeping busy women who wanted to return to work after maternity leave. He said:
“Legal aid can be a good filler for those lawyers out of work or women who want to get back into the legal job market after having children”.
Mr Djanogly spent 21 years in practice with the wealthy international commercial law firm SJ Berwin and earned sums which we associate with top bankers. It may well be that lawyers such as he have no understanding that someone would choose to do legal aid work not because they are looking to fill in, not because they have come back after having babies, as I did, but because they chose from the beginning to give voice to those who are usually voiceless within the system.
I have spent my life doing legal aid work and I have done it through choice. Chambers such as mine win the pro bono awards every year despite the fact that all of our lawyers are legal aid lawyers. Why do they win the prizes for pro bono? It is basically because their life experience in the courts gives them necessary expertise in these areas, so that when they come to do pro bono they are not filling in—or coming like a grandee to offer kindness and charity to the poor—but coming with expertise on welfare rights, employment and what it is like to be poor and on the margins. The starting point is wrong and misunderstands the purpose of legal aid. The purpose is set out in the 1949 legal aid Act: to ensure that no one will be financially unable to prosecute a just and a reasonable claim or defend a legal right.
As I have previously told the House, I chair Justice. We have a number of concerns with which I can deal briefly because most of the other contributors to the debate have pointed out the things that I wanted to say. I reinforce the view that the cuts to the scope of legal aid will be particularly damaging to social welfare law, employment, housing and education for the most disadvantaged. I am concerned about how that will impact on those with special needs, the mentally ill and so on.
We have to test and question some of these ideas in the House because legal aid will not be well defended by the public. Generally, if it is health or education, the public will rally, but they will not do so around legal aid because they think that it is about fat-cat lawyers. The reason for that is a malevolent combination between sometimes government Ministers and the media. It has never been my experience that fat-cat lawyers do legal aid; the vast majority who do are usually committed, decent, good people who are fairly slender and certainly not living high on the hog.
A number of the ideas are certainly worth exploring—for example, the idea of a call centre as the first point of access for the many people who do not know how to start finding a lawyer. However, it should be piloted first because there is a real concern that it will fail to deal with those who have low communication skills or complicated cases, as others have said.
I am also worried about the removal of legal aid from matrimonial cases because of the inequality of arms that it will create for women. So often in the courts already the male spouse is privately represented and the female spouse is legally aided and represented by a legal aid lawyer. She will be cut out and, as the noble Lord, Lord Thomas, said, this may well drive people to make allegations of domestic violence. Even where there has been some domestic violence it is usually not pursued for strategic reasons, because it would not be good for the children to hear rehearsed the details of what happened inside the relationship between the parents. That might lead to undesirable consequences.
I am also concerned about clinical negligence cases. Given the high initial cost of establishing liability, removing legal aid completely will mean that poor people who suffer terrible things within our hospitals will not be able to sue.
The proposals are rushed and, rather like the National Health Service proposals, they need to be given time. I ask for a little let-up and that we examine the proposals before rushing into a folly that will have serious consequences for the poor.
My Lords, I am delighted to contribute to the debate and congratulate the noble Lord, Lord Beecham, on giving us all the opportunity to do so.
I declare an interest. My daughter is a lawyer practising in legal aid. However, I am not just standing here as a proud father: I have an interest in this topic and I am concerned, as noble Lords will see from what I say in these few minutes, with the knock-on effects in areas such as health and social welfare, which I do indeed know a lot about.
As a layman looking at these proposals I can see that the starting point of reducing dependency on the law and finding better ways to solve disputes is a good aim. I can also see that setting priorities and justifying the use of public funds is entirely appropriate. As a former permanent secretary I understand this well—but I also understand that the devil is in the detail and that there will be unintended consequences that must be managed and mitigated. It is particularly sad in this case that these unintended consequences can clearly be foreseen now. A large part of what is being proposed is about limiting the use of legal aid to crisis points, such as the point at which you lose your house, domestic violence, serious disrepairs and so on. That first begs the question of how well these are defined and interpreted. Then, picking up the powerful points made by the noble Lord, Lord Thomas, and others, there is the perverse effect of having to up the ante so that the problem is at that level before you can receive any legal advice.
There is another point. For many people seeking legal aid, the issue that they present with is one of a complex of other issues, not their only problem. Many people have housing problems. They may have health or mental health problems, they may be out of work or have chaotic lifestyles. They must just have multiple problems. The point is that we need to think in terms of not just the seriousness of the issue that is presented but also the scale of the situation and the vulnerability of the people who are presenting the problem. Smaller issues may trip some people over into needing much more help. As I have looked at this issue, I have seen many cases where good legal advice can stop problems and avoid further litigation. As other people have said, there is overwhelming evidence that this can be and is the case in many places.
The Government have also argued in their proposal that alternatives are available. Maybe it is entirely desirable that there should be alternatives available to reaching for a lawyer when you are in these sorts of problems—but are they available? From what other noble Lords are saying, there seems to be a great deal of evidence that there is no guarantee of reliably high-quality advice available elsewhere or everywhere. The point for the Government in making these proposals is that this is an eminently foreseeable problem. How are they going to make sure that alternative services for advice and help really are available—and available to the most vulnerable? In parenthesis, I take the point on the difficulties of having a single source of entry from a telephone system. The reality is that when you are dealing with people with multiple problems and issues you need to look at a range of different channels to reach them, not just one.
I also note that the Government have done an impact assessment of these proposals. Not only are there problems that can be foreseen, but they have foreseen them. They raise a long list of possible problems about social cohesion, increased criminality, the impact of resources on other departments, and a recognition, in their words, that,
“failure to resolve one issue may lead to another arising”.
On health, they recognise that there may be a potential negative effect on health. I will give some simple examples for which there is plenty of evidence. First, on health and housing, we know that unrepaired, damp houses affect both the mental and physical health of adults and children. Research by the LSE for the Department of Health shows that debt advice can not only lower costs for the health, social care and legal systems but can also reduce the risk of individuals developing mental health problems.
Finally, having done that assessment, what are the Government going to do about it? What policies will be put in place to mitigate and manage these problems which are affecting and will potentially affect the health of individuals? There may be unintended consequences of these policies but they are foreseeable. Indeed, the Government seem to have foreseen them.
My Lords, when my noble friend Lord Beecham opened the debate, he told us that the Government had underestimated the number of people who will be denied funding as a result of their changes to legal aid. The Legal Action Group, which discovered this error, stated that the Government had “grossly underestimated” the impact of their cuts. The error came about because the Government chose to base the impact assessment on statistics from 2008-09—more than a year out of date. The Legal Action Group’s director, Steve Hynes, described the Government as using,
“the most generous interpretation of the data it thought it could get away with”.
It is clear from these findings that the number of people seeking help with legal problems is far higher than the Government estimated that it would be. The Law Society’s chief executive, Desmond Hudson, said that it is,
“hard to dispel the suspicion that once again the MoJ has embarked on a programme of painful change, without properly understanding the impact of its proposals”.
At present, legal aid is available to the poorest parents of children with special educational needs who appeal against decisions made by their local councils about additional support for their child. That is as it should be given the fact that 82 per cent of parents win their appeals and 30 per cent of the appeals are conceded by the local authority even before the case reaches a tribunal. Yet the Government now propose to remove all legal aid where it relates to matters of special educational needs. While discrimination claims would still receive support, for many parents the only way to get the help that their child needs is through appeals to the Special Educational Needs Tribunal and support for these will be withdrawn.
The Government seek to justify its removal for three main reasons. First, they say that the education of children cannot be accorded the same level of priority as other important issues. Surely, access to a suitable and challenging education is the right of every child, and if they miss out on such an education they are disadvantaged for the rest of their lives. Disabled children already face many barriers in society, and a failure to provide them with a suitable education puts them at an even greater disadvantage. While the Government have taken some welcome steps to support families with disabled children, they threaten to undermine this by withdrawing legal aid, which many families need to ensure that their children get a decent level of education. The importance of providing an appropriate education to all children, especially those with special educational needs, is such that it should be given the same priority as other important issues.
Secondly, the Government say that they do not believe parents and carers bringing cases like the ones I have mentioned to be particularly vulnerable. But the consultation document from the Ministry of Justice recognises that disabled children are more likely to live with one or more parent who has a disability. Equally, the parents of disabled children are more likely to be in poverty or in single-parent families. These facts make nonsense of the Government’s statement that the parents bringing these cases are not likely to be particularly vulnerable. The withdrawal of legal aid in such circumstances risks taking away support from parents who are already financially disadvantaged and pushing even more families with a disabled child into poverty. Surely that renders such parents particularly vulnerable and means that they should be given the support they need rather than making them the victims of these cuts.
In addition to making the wrong decision when assessing the vulnerability of parents, the Government in their equality impact assessment failed to consider the impact of withdrawing legal aid on the children themselves. Some 60 per cent of pupils who leave school without GCSEs have special educational needs, and they are not likely to be in education, training or employment at the age of 19. Taking away legal aid from parents who are supporting these children is an absolute disgrace.
Finally, the Government believe that there are sufficient alternative sources to justify the removal of legal aid in these cases. To support the argument, they identify the parent partnership service, the Advisory Centre for Education and the Independent Parental Special Education Advice service. The advisory centre and IPSEA already have more requests than they can cope with and the parent partnership service is facing huge budget cuts by local authorities. Therefore, legal aid will be at risk.
None of the Government’s reasons for withdrawing legal aid from those with special educational needs stands up to scrutiny, and I hope they will think again. In a civilised society, this cannot be justified.
My Lords, I also am concerned about the proposed cuts in the provision of civil legal aid, to which a number of noble Lords have already referred. In his introduction to the consultation paper, the Justice Secretary claims that the proposals are justified because legal aid has expanded to cases that should not require legal expertise to be resolved. In some cases, the right to civil legal aid will be retained—for judicial review, homelessness and domestic violence, among others. On the down side, the largest casualty will be private family cases where there is no element of domestic violence or false marriage. Many women who currently get legal aid for ancillary relief will be directed to mandatory mediation, and that is all. Their former partners, if unco-operative, will simply wait out the inconvenience and continue their intransigence. But there is an even worse aspect.
Legal aid will be denied in cases of children who have been victims of medical negligence. It is really awful to think that a child, who could have been disabled perhaps for life as a result of medical negligence, would have no redress. I understand that the Government say that under no-win no-fee arrangements child victims will be able to sue for compensation. However, it seems that those arrangements are under review by the Government. Anyhow, I think that it is an entirely unsatisfactory response.
Those who lose out will be mainly women, their children, and the disabled. Those with disabilities will be disproportionately hit by cuts to areas such as clinical negligence and education, and children such as those fighting cerebral palsy, birth injuries and those requiring additional educational support will be cut out of entitlement.
In the words of a well known lawyer writing in Counsel, the journal of the Bar Council, the consultative paper destroys the coherent national system of legal advice and replaces it with a hideously complicated list of entitlements and restrictions. He concludes that it is outrageous that half a million people on benefit incomes, or just above, will lose entitlement to legal aid because of the excesses of bankers with staggering incomes and, maybe, the incompetence of those managing government finances. I agree. The Government really must think again, particularly about the likely effect upon the most vulnerable—children and the disabled.
A section of the consultative paper deals with employment, and here the Government seem rather confused. The paper refers to “user-friendly procedures” available via the tribunals, where individuals can in effect represent themselves so there is no need at all to provide legal aid in an employment context. The present arrangements are described in glowing terms. However, over at the Department for Business, Innovation and Skills an entirely different view is taken. The Business Secretary is now in favour of proposals that make it easier for employers to dismiss workers and more difficult for workers to make claims for unfair dismissal.
To get to a tribunal at all a worker will have to pay a fee, perhaps a large one, and it will not be the nice friendly tribunal envisaged in the Justice Secretary’s paper—oh no. The lay sidespersons currently on tribunals, who are representative of both sides of industry, are to be withdrawn. The unemployed worker must put his case to a judge sitting alone, so a so-called nice friendly set-up is to be transformed into an entirely legal one, with, of course, no assistance provided.
There is only one piece of advice that I could give to an employee: if you are not yet a member of a trade union, join one as soon as you can. Unions are skilled at representing their members, and the Government are introducing an environment in which you will need all the protection you can get.
My Lords, in the time available I want to make three points about the proposed cuts to civil legal aid. First, the cuts target the poorest but reduce standards for all of us. Secondly, the cuts in their present form actually increase costs to the taxpayer. Thirdly, not only do they restrict access to justice but, as we have heard, they specifically remove legal aid from children who are victims of medical accidents or negligence.
I find that almost unbelievable. Who in their right mind would think that it was an acceptable idea to remove legal aid from a child who had been disabled for life due to a medical accident or, still worse, negligence? I have written to all noble Lords asking them to write to the Prime Minister on this point because I feel so strongly about it. Regardless of our politics, I do not believe that there is a single one of us in this House who thinks that that is a good and proper thing to do. I hope all of us believe that Great Britain should be a country that provides legal aid to children who are victims in these circumstances, not one that would deny those children any recourse to justice.
Giving Members on the government Benches the benefit of the doubt, what on earth is this about? Even more perplexingly, this is not just about saving money; if it were, the Government would welcome the Law Society’s proposals with open arms. These cut more than the Government’s £350 million cuts to legal aid. The Law Society, playing an excellent hand of poker, has raised the Government’s cuts and said, “We’ll cut even more”. So, if this is about saving money, why cannot we take on board the expertise of those who actually work in the sector? Critically, the Law Society’s cuts do not involve removing recourse to justice from the most vulnerable.
Coming to perhaps the most salient point, it is not just the poorest who will suffer. We will all suffer. If we do not have legal aid to challenge Rachman-type housing, for example, housing standards will not improve. If we do not have legal aid to challenge medical negligence, care in the health service overall will not improve. We see how case law in Britain protects all British people. Look at the Hillsborough disaster, the thalidomide case and the Clapham rail crash; all involved elements of civil legal aid and led to safety improvement, whether for healthcare, stadium safety or transport. Therefore, although evidently only the poorest qualify for civil legal aid, the resulting case law protects us all. We will be worse off if this goes through as currently planned. I ask the Government to think again and for intelligent cuts. None of us thinks that no cuts should be made, but they should not be self-inflicted cuts that will wound this country grievously.
I ask the Minister to reply to me on a particular point to clarify the Green Paper, which says on page 172:
“We propose to retain the current scope of Legal Help and Representation”,
covering legal aid for medical negligence. It uses a few more words than that but that is essentially what it says. It goes on to say:
“We propose to remove all Legal Help and Representation”,
around medical negligence, again using a lot more words. Which is it? I know the Government have said that it was an accident and that they did not mean to give children that cover. However, the good thing about such a contradictory Green Paper is that the Government can do a U-turn and say, “Oh, that is what we were thinking all along”. That is what I hope they will do. Please step back from these proposals. It is bad enough to remove help from the most vulnerable, but to do so when it seems clear that it will increase costs to other departments is frankly insane. I shall write to the Minister with a full list of examples of how costs will increase in other departments.
I fully realise that in this House a law we often pass is that of unintended consequences. However, here the consequences are clear. I implore the Minister to commission an impact assessment before going further with something that could severely damage this country’s fantastic justice system.
My Lords, I thank my noble friend Lord Beecham for instigating this debate and all noble Lords who have spoken in it. There can be no doubt that this debate is both timely and vital. It is timely because the Government are, we are told, close to announcing their decisions on their consultation paper of last November. It is vital because if the Government stick to their Green Paper proposals, the system of social welfare legal aid will be decimated, if not destroyed. The situation is as serious as that. Nearly 750,000 people will no longer be eligible for legal help. Huge swathes of social welfare law—in housing, debt, education and employment—will be declared out of scope. Legal help that catches problems early will no longer be available in many cases, and the eventual cost to the state, as we have heard, will be much higher.
These proposals are nothing short of an attack on the poor—no more and no less. They are the wrong cuts at the wrong time and hurt the wrong people. It is therefore hardly surprising that many groups have banded together to try to persuade the Government just to think again. This debate is part of that process. I pay tribute to Justice for All, the umbrella group that covers many groups that have taken up this cause, and to the Law Society and the Bar Council. I also pay tribute to many Members of another place from all political parties, who have said: first, that this is wrong; secondly, that there are alternatives; and, thirdly, that to implement the proposals as they stand would be disastrous, uncivilised, discriminatory and hugely counterproductive.
Of course, there must be cuts. We accepted that when we were in government, and we accept it now. Indeed, we cut legal aid, controversially in some cases. If we had been returned to government at the previous election, we would have made some cuts, but not as many, nor as fast as the proposals that we are discussing. We would probably have made cuts in the field of criminal law following the publication of our White Paper Restructuring the Delivery of Criminal Defence Services, which was published in March 2010. Those substantial cuts would have been controversial, but not as substantial as this Government’s. However, when we were in government we refused point blank to cut social welfare legal aid. Indeed, we increased it from £151 million in 2007-08 to £208.4 million in 2009-10—our last year in office.
We also raised the financial eligibility limit for civil legal aid by 5 per cent in 2009, making it possible for many more people to receive the legal help that they needed. Now the Government propose to cut eligibility significantly. The ministerial achievement of which I am perhaps most proud was that of saving the South-West London Law Centre from closure. At a time of economic difficulty it is madness to cut legal aid in this way, but the Government intend to do so. If legal aid does not give at least some access to justice for those who are dispossessed or disadvantaged, whether through poverty, bad housing, unemployment, low wages, the colour of their skin or their mental and physical health, what is the point of having a legal aid system?
The case has perhaps never been as well put as by Helen Grant, the new Conservative Member of Parliament for Maidstone and The Weald, in an article in a national newspaper in February this year. The article states that,
“as civil liberty is to the freedoms of our nation, civil legal aid is to the protection of its citizens. For some of our most vulnerable people, it is the only sword and shield in their armoury”.
Common sense and the expert research of Professor Hazel Genn and others, mentioned by my noble friend Lord Hart, tell us that early legal advice changes lives. We know that legal problems come in clusters and not singly and that a lack of such early and comprehensive advice can lead to problems escalating out of control, leading to relationship breakdown, unpaid and hopeless debts, and sometimes a decline into crime, with all the misery that that brings with it. Yet I fear that that will be one of the almost inevitable results of these proposals if they are implemented. Then there is the cost to the state and to all of us as taxpayers when no legal help is given. The savings that the CAB calculates would arise from spending £1 of legal aid money were mentioned by my noble friend Lord Beecham in his opening speech. The Government’s proposals are financially hugely counterproductive.
As has been said, the lawyers who practise this type of law are not well paid. Some of them have given up the possibility of well paid careers in other areas of law. Yet the Government plan to take 10 per cent from each modest fee that they receive for giving social welfare advice. We know that a number of CABs will not be able to carry on, and that private solicitors, who have been under pressure for some time, may be tipped over the edge. However, we should also state clearly that the law centre movement, which does so much for the dispossessed and underprivileged in our society, is likely to be crushed. There is a proposed 77.6 per cent reduction in funding for legal help and an 83.6 per percent reduction planned in the number of legal help cases, all at the same time as local authority spend is falling. Whether intended or not, these proposals may well destroy law centres, with a disastrous effect on their clients.
Why these proposals? On the whole, previous Conservative Governments have been generous in their support for legal aid. The Liberal Democrats have demanded more money to be spent on legal aid—they demanded that of us and criticised our cuts. They, too, have argued for social welfare law. How can Ministers have signed up to these proposals? My own view is not that Ministers want to play the role of the wicked uncle who wants to destroy anything good he comes across. It is simply, and here I follow my noble friend Lady Kennedy of The Shaws, that they just do not get it. Their view of legal aid is very limited and old-fashioned, so they do not see its relevance to social welfare law. Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty's Government should stop this 1984 Orwellian-type misuse of language.
In my view, however, the Minister who is to reply to this debate does get it. His whole political history shows him to be someone who understands the importance of what is about to be destroyed. Our request to him is: please fight these proposals within your department and do not let these fundamentally anti-liberal measures be implemented. He enjoys a huge reputation in this House, both personally and politically. If he were to succeed in mitigating these proposals, that reputation would soar even higher. Why should he bother, he might ask? Legal aid is not his portfolio but someone else’s. He should bother because this is not fundamentally a legal issue at all. It is not just one for lawyers, in government or outside it, and it is not one for non-lawyer Ministers and non-lawyers generally to shy away from. It is a simple issue about right or wrong and justice or injustice. In the end, I say to the noble Lord, it is a simple question of morality.
The noble Lord, Lord Bach, tempts me. I am thinking of Murder in the Cathedral by TS Eliot:
“The last temptation is the greatest treason: To do the right deed for the wrong reason”.
My objectives in politics, like those of most people in this House, are of course of a moral kind. I did not come into politics to hurt the poor but there is the fact—in this I am not playing the usual party political game—that when we came into government we also came into the biggest financial crisis that this country had faced in 80 years. The noble Lord, Lord Bach, knows full well—because his own Government were planning cuts—that whoever the Ministers were going to be, they would be faced with tough, hard decisions.
To govern is to choose and every department has had to make tough decisions. I do not resile from these. If you are in a department which has only three big-ticket items—prisons, probation and legal aid—and you are asked, as part of the contribution to economic recovery, to find £2 billion in savings, you will have to look at those three big-ticket items. In looking at legal aid, we have tried to look in the most compassionate way at the scope of the areas that we cover. I have answered questions before on this subject. If part of your government system is targeted on the poorest sections of your community and you cut that budget then you are going to hurt those sections of the community. That is the same thing that is happening with local authorities around the country and other departments in looking at their various budgets. It is too easy and I have to say that even with the noble Lord, Lord Bach, at the end, not one of the speakers actually put forward a hard choice as if they were at this Dispatch Box. It is all right to say that we have plans to raid criminal legal aid, or the Law Society is going to shift the cost on to the drinks industry, or—I think the jargon is “the polluter pays”—that it will be spread around Whitehall, but even spreading it around Whitehall leaves the Exchequer with the need to save the money.
I do not doubt the passion that has been expressed today and some very valid points have been made. I will try to deal with specifics as I go through. We are still in consultation. I cannot say that the consultation is going to produce some Pauline conversion at the last moment. As I say, we have made a commitment to savings and we intend to deliver them. What we have tried to do is to look at the whole philosophy of the system of legal aid, which a number of speakers acknowledge had grown and expanded since its introduction in 1949. I went to see the noble Lord, Lord Hutchinson—Jeremy Hutchinson from the Liberal Benches—who is now, I think, 96. He is in splendid form, although he no longer attends the House. He was part of the generation that created the legal aid system. He said to me that their hope then was to create the parallel legal system to the National Health Service. I do not doubt that that what was behind, and is behind, the legal aid system. We share that. The consultation that we put out has produced nearly 5,000—4,800—responses in total. I cannot give the detailed government response today. We will be announcing that in the next few weeks. I can assure the House that the various points made today will be fed back into that consultation.
Before addressing the particular points made in the debate, I wish to reiterate briefly some of the considerations the Government bore in mind in making these proposals. The context of the Government’s overall reform is, as I have said, to tackle the deficit we inherited on entering office. Last October the spending review set out the scale of the challenge facing the Ministry of Justice. However, as the Government have stressed, we know that our policy cannot be determined simply by dealing with the deficit—nor are we doing so. There is considerable potential for reform within the justice system. Our legal structures and our legal aid system are capable of reform. Therefore, financial considerations and the need for reform come together.
There are many reasons why we believe it is necessary to reform legal aid, many of which have been acknowledged today. Since the modern legal aid system was established, its scope has been widened far beyond what was originally intended. By 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. The scheme now costs more than £2 billion a year, making it one of the most comprehensive schemes in the world, even taking jurisdictional differences into account. We need to understand that even after reform we will still have one of the most expensive schemes in the world.
In developing our legal aid reform proposals, we went back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merit test. The proposals in the consultation paper aimed to take into account the importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the dispute, as well as our domestic and legal obligations.
To focus financial support on the areas where it is most appropriate and most necessary, the proposed reforms involve significant change to the scope of legal aid funding. We did not propose any change to the scope of criminal legal aid, and it was also proposed that legal aid will still routinely be available, as a number of colleagues have said, in civil and family cases where people’s liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home.
For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases. Legal aid will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care and for cases involving domestic violence—I note the comments that have been made on that—forced marriage or immigration cases where the appellant’s liberty is at stake. We also proposed that legal aid should be available for cases where people seek to hold the state to account by judicial review, and for cases involving discrimination that are currently in scope. Legal help to bereaved families in inquests would also remain in scope.
However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. We therefore proposed to remove from the scope of the scheme issues that are not, relatively speaking, of sufficient priority to justify funding at the taxpayer’s expense. We proposed to cease providing legal aid support for private family law cases unless domestic violence, forced marriage or child abduction is involved. Too often, the long drawn-out acrimonious nature of court proceedings exacerbates disputes between couples, rather than solving them. Under our proposals, we would continue to provide funding for mediation to encourage couples to use more effectively methods to resolve issues between themselves, rather than using the courts. We are not proposing mediation as a cure-all in place of litigation, and I will say more on that shortly.
The Government further proposed to remove from the scope of the civil legal aid scheme claims of clinical negligence, where, in many cases, alternative sources of funding are available, such as no-win, no-fee arrangements. Again, I note the points made on that. We also proposed to remove from scope the categories of employment, education and immigration, some debt and housing issues, and welfare benefits. There would be exceptions for some of these cases where there is a risk to anyone’s safety or liberty, or a risk of homelessness, or discrimination. In many of these cases, the issues are not necessarily of a legal nature, but require information, practical advice or other forms of expertise to resolve.
We recognised that there would be some cases within the areas of law that we proposed to remove from scope where international or domestic law would require funding by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. However, I say to my noble friend Lord Faulks that we will take a very hard look at issues on the international side. There will not be an open cheque-book on that.
We are looking at the impact of the reforms on existing claimants and various groups who would no longer have access to legal aid. We recognise that the proposals would have some impact on existing claimants or various groups if issues no longer fell within the scope of legal aid. However, that does not mean that people would be unable to resolve their issues. Straightforward mechanisms are often available to assist. For example, legal representation is not currently available in many tribunals, such as on employment matters, because they are designed to be used without legal aid. We published initial impact assessments and equality impact assessments alongside our consultation. Partly in answer to the point raised by the noble Lord, Lord Touhig, we will update the impact assessments when we publish the final response.
There is limited evidence about the impact of the proposals on case length for litigants in person, and the findings are mixed. However, we are seeking to simplify the procedures, forms and guidance available to those using the courts in person.
We recognise that mediation may not be appropriate for all individuals but it is important for them to consider it as an option, and we are currently making its use easier for individuals. When successful, mediation may hold considerable advantages, as it can be a cheaper, quicker and less acrimonious process than contested court proceedings.
Public funding for family mediation has been made available for more than a decade and this has proved to be a successful policy. On 6 April, we introduced a pre-application protocol for family mediation information assessment meetings. Any individual—self-funded or public-funded—will be expected to consider mediation before beginning proceedings. However, family proceedings in relation to domestic violence or emergency proceedings are expressly outside the scope of this requirement. This is a big step forward in improving awareness and encouraging take-up of family mediation.
On civil mediation, the Government are currently consulting on the paper, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. The proposals are to require all those involved in cases below the small claims limit to attempt settlement through mediation before being considered for a hearing, and to introduce mediation information and assessment sessions for claims above the small claims limit. We recognise that we cannot, of course, compel parties to settle but we can create a better environment within which settlement can be explored. The consultation closes on 30 June.
Perhaps I may now turn to some of the specific issues that I have not covered. The noble Baroness, Lady Sherlock, asked for a time lag. I am not sure that that can be done but I shall feed that suggestion back to colleagues.
The question of clinical negligence was raised by my noble friend Lord Faulks and by a number of other noble Lords, including my noble friend Lord Thomas of Gresford. This will undoubtedly be a matter for some debate when legislation reaches the other place and this House. Confidence over whether CFAs will cover that area will, I am sure, be hotly debated, and we can certainly consult Lord Justice Jackson again on that.
The noble Lord, Lord Dubs, was concerned about forced marriages. I had better double-check my notes before I sell the pass on this but I think that forced marriages will remain within the scope of legal aid. We propose to keep legal aid for those cases, including the power to waive the upper financial eligibility. I hope that helps.
I fully acknowledge the point made by the noble Lord, Lord Hart, about the pro bono help from the legal profession. The question of advice deserts was raised; we will look at that as a concern.
To the noble Lord, Lord Haskel, I say that “polluter pays” is a neat option, but in the end the Treasury wants its money.
We are looking at the evidence given by the Law Society on the point mentioned by the noble Lord, Lord Beecham, and will give consideration to it and publish our responses in due course.
I take the point that my noble friend Lord Thomas made about people inserting domestic violence to get themselves in scope; that would have to be advised on.
The noble Baroness, Lady Sherlock, emphasised the need for advice. We differ on whether the advice needed is always legal advice—whether we force people into legal advice.
I go back to the noble Lord, Lord Faulks, to say that we will look hard at requests under the human rights issues, and the Government want funding only on serious and significant cases. I will also feed back his concerns—they were expressed by others as well—about clinical medical negligence.
To the noble Baroness, Lady King, I say that the consultation paper was clear. I was passed it; it is around here somewhere. That document clearly states that we were going to take clinical negligence out of scope. If she sees a contradiction, I will be happy to talk to her about it. I too received her letter; there will clearly be a campaign on that issue.
The noble Earl, Lord Listowel, asked for assurance about children who need separate representation in family cases. Yes, we propose to keep legal aid for children where they have been made a party for the case in family proceedings.
The noble Baroness, Lady Kennedy, took some cheap shots at my friend Jonathan Djanogly, who is a very good solicitor.
I give full deference to the advice of the noble Lord, Lord Crisp, a former Permanent Secretary. However, in his long and distinguished career, I am sure that he too must have sat there with a Treasury demand notice and a programme of cuts to be pushed through.
The noble Lord, Lord Touhig, made a point on special educational needs tribunals, which have been designed to be easy and accessible. We are considering the points he made during consultation.
I am now being tugged at; my time is up. If points were made on which I have not had a chance to reply, I will write to colleagues. I agree with the noble Lord, Lord Bach; this has been an extremely timely debate, because we are still in consultation. It has been extremely useful, because those who have contributed have done so from real expertise and commitment. We are listening. We have some tough decisions to take and we will not flinch from them, but neither will we ignore common sense when it is offered to us.
My Lords, I thank noble Lords who contributed so seriously and constructively to the debate, and others who indicated interest and support but were unable to attend. I cite in particular the noble Lord, Lord Newton of Braintree, who very much wished to be here. I extend my thanks and sympathy to the Minister, who struggled manfully with the constraints of collective responsibility—or, as some of us would say, collective irresponsibility. I am sure that he will take back the opinions, facts and suggestions from today's debate and that we will see at least some of them reflected in the legislation that is wending its way towards us. In the circumstances, I beg leave to withdraw the Motion.
Employment and Support Allowance (Work-Related Activity) Regulations 2011
Motion to Approve
My Lords, these regulations establish a new requirement for some employment and support allowance customers—those who are able to prepare for a return to work—to undertake activity that will help them move closer to employment. The regulations amend current rules to allow people assessed as being able to prepare for work to engage in activities such as training, CV writing or researching local employment opportunities.
The regulations are about extending a hand of support and giving a nudge of encouragement to people who have been out of work as a result of a health condition or disability, but who may be able to return to the workplace with the right level of tailored back-to-work support, primarily under the umbrella of the Work Programme. The regulations are deliberately non-prescriptive to allow this support to be adapted to the individual and to ensure that it is flexible enough to deal with fluctuating conditions.
The regulations apply only to those in what is referred to as the work-related activity group—people who can reasonably be expected to prepare for a return to work. We remain committed to providing unconditional support for severely disabled people who cannot work, but we have also made a commitment to support people with a disability or health condition who have the potential to work in future. We are convinced that work-related activity should form part of that support.
Some noble Lords here for today’s debate met officials from the Department for Work and Pensions and me to look through some of the detail of these regulations. It was a very useful meeting and I hope that the forensic investigation has already gone some way towards allaying concerns.
For our purposes, I will take a few moments to set out for the House the history of the regulations. The powers that we wish to enact today are evolutionary, building on the work of the previous Government. They were taken by the previous Government in May 2007 but never brought into force. We believe that it is crucial to enact them as originally envisaged for new customers, but also to extend them to existing customers, providing the same level of support for all.
The notion that disabled people or those with health conditions should be able to access support to help them move closer to the labour market was in the Conservative Party Green Paper, Responsibility Agenda, published in January 2008. This paper set out, for the first time, that help should be extended to the existing stock—as it is vulgarly called—of benefit claimants, namely people written off on incapacity benefits, many of whom had received little or no support. The previous Government set about implementing this idea with the introduction of the employment and support allowance in October 2008. This included the intention to provide mandatory work-focused interviews and some work-related support for new customers, but no plan to extend the support to existing customers—the “stock”. In December 2008, Professor Paul Gregg published a report recommending extending and improving support for all customers and the Government of the day accepted his recommendations.
Convinced of the importance of providing back-to-work support for all customers by the summer of 2014, all current incapacity benefit claimants will have been assessed for ESA. Those customers placed in the work-related activity group will, if these regulations pass, be able to access this improved package of support. These regulations make participation in work-related activity part of the mandatory package. Quite simply, the evidence of the beneficial impact of work, even for those with a health condition or disability, is too strong to ignore. The regulations before the House today seek to ensure that, for those who can, taking part in activities designed to help them return to work becomes a normal part of the ESA regime.
I stress that these regulations do not apply to all ESA customers. The group we are particularly concerned with are those customers who make up the work-related activity group, who we can realistically expect to return to work at some future point. Once we have recognised that someone is capable of work-related activity, it is vital that we provide opportunities to engage with the labour market and offer support to identify achievable and sustainable work-related goals. These regulations provide for that support to be delivered, empowering individuals so they are able to take real, active steps to improve their chances of securing employment once their health or condition improves and they are ready for a return to work.
The regulations do not specify the type of activity that we expect this group to engage in. Indeed, the definition of work-related activity is deliberately broad, covering any activity which makes it more likely that the person will obtain or remain in work. However, there are some absolutes. We will not require customers to undertake medical treatment nor to seek, apply for or take up work. Beyond that, we do not want to be overly prescriptive. The emphasis is on the relationship between advisers and individual customers working together to tailor a plan of action that will always be reasonable, realistic and relevant.
Customers who do not participate in work-related activity will be sanctioned, and I know noble Lords have some concerns in this area. In response, let me just say this: there are safeguards in place to ensure that sanctions are not improperly applied. Sanctions will apply only to the work-related activity component of the benefit and will be applied only by trained Jobcentre Plus decision-makers, who will have the freedom and expertise to exercise their discretion. The decision-makers receive comprehensive training to enable them to seek out and assess all available evidence to ensure customers are given a fair hearing. In addition, Jobcentre Plus has a robust appeals process for anybody who is unhappy with a sanction they receive. I set out the full complement of available protections in the letter I sent to Peers earlier this week.
The main question that the Merits Committee, which looked at this, was concerned about was adviser training and capacity. JCP will set the standard for employment-related personal adviser services in the UK, and Edexcel has endorsed the learning route ways for personal advisers and assistant advisers. We must avoid the mistakes inherent in previous employment programmes that sought to compartmentalise customers and offered only a narrow range of support options based on predetermined assumptions. Flexibility is the key, and the support provided through the Work Programme will be tailored to individual circumstances, including taking into account any ongoing health issues.
We will guarantee the quality of the support provided through the Work Programme by implementing a demanding payment-by-results structure without dictating to providers how those results should be achieved. This will give providers from the private, voluntary and public sectors the freedom to innovate and find out what works best for different customers, enabling them to deliver a truly tailored approach.
We know that some customers on the Work Programme will be much closer to the labour market than others. To ensure that providers do not simply focus their efforts on the easiest to help, we have designed the payment structure to give providers greater rewards for supporting those with the greatest barriers to sustainable employment, including some of those claiming ESA. To put it simply, we will pay more to providers who work effectively with the hardest to help. That sum is considerable and can be nearly £14,000 in some cases.
Earlier this week, I sent out a schedule of that payment structure for ESA customers. I shall touch on some of those figures. As a reference point, for the jobseeker’s allowance customer group between the ages of 18 and 24, who we know should find work reasonably quickly, the maximum payment will be £3,800 as the contracts start. Within the model, there are now three categories of ESA customers. They are divided between those who are new recipients of ESA and those who have previously received incapacity benefits.
For those new ESA work-related activity group customers who have a short prognosis and are required to participate in the programme, we will pay up to £6,500 per person at the beginning of the contract. One can see the step up from the basic £3,800 being paid to the young JSA customers. For the ESA work-related activity group customers who volunteer for the programme—those receiving contributions-based ESA or with a long prognosis—we will pay up to £3,700 at the early part of the contract. We pay those customers less because, as they have volunteered for early access to the Work Programme, they are likely to be more receptive to support and therefore easier for providers to help than customers who are required to participate in the programme. There is also a financial structure behind this around how the DEL-AME switch works.
The final group are those who come off incapacity benefit on to ESA, and they will be paid up to £13,700 at the early stage of the contract. Our evidence suggests that these customers will be the hardest to help. Many of them will have spent many years receiving incapacity benefits before they move to ESA. The payments for the groups will change as the contracts develop, during which time we will introduce an incentive structure for some groups where a £1,000 incentive will kick in when the providers start to really perform.
The Work Programme is bigger than any previous employment programmes. It will serve a much wider range of customers, including those claiming ESA. Those customers who are self-employed or who have a contract of employment will be supported by Jobcentre Plus. All others will have the option of volunteering to participate in the Work Programme at any point after their work capability assessment. One of the key changes that these regulations would allow is to make participation in the Work Programme compulsory for those in the work-related activity group who have a short prognosis.
I am not going to address the work capability assessment at this stage. Perhaps noble Lords will want to raise it, although it has been debated in great depth recently. I suspect that the subject may have been aired well enough already.
We believe that, with the right support and encouragement, many more people can and should benefit from the opportunities presented by active engagement with the world of work. Undertaking carefully considered appropriate activity to improve job prospects represents a positive, realistic approach to avoiding long-term benefit dependence. I beg to move.
My Lords, I welcome these regulations. As the Minister said, they have been in train for some time. Progress on the process of helping people into work has been going on for several years now, so this is part of putting flesh on the bones of a project that clearly needs to be accelerated. As always when it comes to detail of this sort, it is the delivery that will cause the most anxiety in people who are trying to anticipate the conclusions that result from the implementation of these regulations. I would sum this up in an overarching phrase, that of fairness and even-handed treatment in the personalisation process about which my noble friend has spoken.
It is important to note that this marks a cultural change for Jobcentre Plus, particularly as regards how the staff have worked in the past. I approve of that because it is important to empower advisers so that they can make choices and decisions in order to be able to help people towards what will suit their individual circumstances. The consequence of that is that the advisers will have more flexibility that will enable them to treat people in different ways. That will be a considerable shift. Some months ago we observed that there was absolute direction from the centre to Jobcentre Plus offices. That resulted in different interpretations being made on, for instance, the number of job applications you could have before you were sanctioned. That was not envisaged by the Department for Work and Pensions and the Government. That largely came down to the strict top-down instructions being given. Now that we are offering freedom to Jobcentre Plus advisers, it is essential that they have the appropriate skills and training to be able to deal with the vast range of people coming before them. The questions of training and capacity are crucial. We know that the Department for Work and Pensions is not exempt from the overarching cuts that have to be made to budgets, so I wonder if my noble friend can assure me that these advisers, who are going to be so important in helping people get back into the workplace and thus productive in the British economy, will not be affected by the number of jobs available at the sharp end.
Personalisation, if we are going to take this perfectly appropriate approach, raises the spectre of a variation of views being offered to the same kind of people in different places. That is a consequence of offering freedoms. There are two counterbalances to that. The first is a lighter touch, but certainly some form of strategic approach set out in guidance from the centre to Jobcentre Plus advisers. Secondly, each Jobcentre Plus office should have some form of check and balance. People who feel that perhaps they have been treated unfairly should not have to go through a whole rigmarole, so advisers should themselves be subject to a check and balance to ensure that the decisions they take meet with the accord of their colleagues as well. In that light, words are very important. We have the word “appropriateness” to which I shall return later, and the term “good cause”, which covers a subjective decision but is important because it provides the flexibility needed when looking at a case that has been made by a customer which stands up and therefore needs to be tested. Clearly, if this is going to be left open to advisers, we must note that one person’s interpretation may be different from that of another. It is therefore important that a check and balance is available and that a sense of direction is given, but not in too heavy-handed a way that derives a distinct interpretation of good cause.
The personalised approach that these regulations give vent to will be more helpful if advisers themselves are able to access the full range of information about their customers. Why will the work capability assessments not be provided for the advisers? If they need to know about someone’s abilities and disabilities, something is already written down about it. Surely it would be more sensible to provide advisers with access to that information so that they can have a full picture before them when they speak to the customer. Only “some” discretion exists for this information being available to Jobcentre Plus advisers. Why will they not have that full level of knowledge, which one presumes will be available online anyway?
There are some lessons to be learnt from the processes—they have been going through very recently. Professor Harrington’s review pointed out that some considerable changes needed to be made to the way in which we handle customers. Those recommendations were accepted and are presumably being implemented as we speak. I should like an assurance from the Minister that those customers will be approached in the same way as customers who are carrying out their action plans for work assessments. I am anxious to ensure that no guidance is in any sense being misinterpreted or too literally taken. That is the test of getting it working.
I have a number of specific questions on the regulations. The regulations seem to say that there will be discretion for lone parents with children up to the age of 13, which seems to be the cut-off. Will that level of discretion be afforded to lone parents who have children between the ages of 13 and 16? I can think of two distinct examples. The first would be where a lone parent has a child who has some form of disability and needs to be at home when the child comes back from school. The second is the lone parent of a child who has come home from school. Despite their having told the child, “You are going to be on your own at home and you’d better look after yourself”, somebody complains to the school, and the school comes back to the Jobcentre Plus and says, “Why have you forced this lone parent not to be able to look after a child properly?” Discretion should be given in this area so that account can be taken of the fact that some lone parents of children between 13 and 16 need to be at home when their children get home.
The data provided with the regulations show a heavily weighted spread of people who will fall into this group in different parts of the United Kingdom. I come from Wales, which is likely to have the most people wanting help, and I wonder whether my noble friend could indicate whether the support given to advisers will be related to the number of cases that they are likely to take up.
I have two final points on the regulations. The first relates to review and evaluation. Professor Harrington’s work makes it clear that a continuing, rolling review of what has been done and whether objectives have been achieved is very important. This suite of regulations should not be exempt from that review either. Will the Minister consider extending the role of Professor Harrington to look at the impact of these assessments as well? The annexe to the impact assessment states:
“The evaluation is likely to include qualitative and quantitative approaches, alongside internal monitoring”.
I hope that the Minister will assure us today that the evaluation will, rather than is likely to, include some form of support for the regime of reviewing and making sure that it is absolutely correct.
Secondly, the Minister has just said that a big package of financial help will be provided for those who are furthest from the job market. He quoted the figures for the respective ESA groups: £3,700, £6,500 and £13,700. Those are large and sharp shoulders. In this discretionary and personalisation world in which we live, there are bound to be people who will fall just outside those boundaries on one side or the other. My noble friend referred to the issue of incentivisation payments: will they help to smooth out those shoulders? They are very steep steps and if you fall into one category it will be very difficult to get out over that shoulder.
My noble friend outlined particularly well the way in which these regulations will work but safeguards will be needed. The safeguard of reasonable behaviour by both the customer and the adviser is crucial. Will the advisers now have expert support, particularly when dealing with fluctuating conditions, mental health conditions and so on, in order that they can properly advise and be certain that that advice is of the best kind to meet the broad range of conditions they are likely to see?
In general, I am pleased to support these regulations as they appear.
My Lords, I, too, welcome this short debate about what the state now requires ESA claimants to do in order for them to receive the full benefits they are entitled to. If what happens on the ground is what we are told will happen in the regulations, in the Explanatory Memorandum and in the papers that my noble friend kindly sent us, then everything should go relatively smoothly and the results could be extremely encouraging and very welcome.
However, I fear that for many of us the elephant in the room is still the work capability assessment. I agree with my noble friend that this is not the place to discuss this because the regulations are about activity at least six months after the assessment will have taken place. However, the elephant is still there, lurking in the background, and I, too, look forward to Professor Harrington’s report on how the assessment deals with the two most difficult but commonest causes of people not being able to work—that is, mental health conditions and fluctuating conditions. I have been reminded this week about two fluctuating conditions which hardly get raised at all. They are both quite different from each other and make one realise how wide this field is: one is congenital heart disease, which is comparatively rare and completely hidden on the surface but can make someone feel fine one day and completely exhausted the next; and the other is Crohn’s disease and ulcerative colitis, where a person can be fine for a month or five years and then, without warning, have a severe flare-up which can make regular and demanding employment difficult. Incidentally, today is World IBD day—that is, inflammatory bowel disease day.
I was pleased to see in one of the documents that there is flexibility around the timing of a claimant undertaking work-related activity, which is extremely important. I was also pleased that the Minister in another place reassured our colleague, Stephen Lloyd, that decision-makers in Jobcentre Plus have the power to seek medical advice, if they need it, for people with particular conditions. This is extremely important because, as my noble friend Lord German said, decision-makers do not have access to the result of the work capability assessment. I assume this is for reasons of confidentiality, but it does seem perverse.
I endorse what my noble friend said about more training for JCP staff. I am pleased that they are being given more autonomy and flexibility and I am reassured that the Minister in the other place said that he was looking for ways in which the quality of training for JCP staff could be improved. This is an urgent matter if these new regulations are to be brought in very soon. Can my noble friend tell us which groups are advising him about this new and improved training and when the new guidance will be available?
To follow on from what my noble friend said on the culture at Jobcentre Plus offices, the attitude of personal advisers and decision-makers is as important as their knowledge of various conditions. A sympathetic adviser will do a great deal to reassure an anxious claimant who may be extremely fearful of trying to find work for the first time in a long while. What is the current role of disability benefit advisers in Jobcentre Plus offices? Do they have any specialised training in medical conditions? We heard some weeks ago that quite a lot of Jobcentre Plus offices are being closed, although it sounded as though the staff were being deployed elsewhere. Can my noble friend say a word about that?
Finally, one way to know if these regulations are working is that the number of appeals against a sanction will be low and the number of ESA claimants being helped into work will be high. I hope for a good result.
My Lords, I thank the Minister for his clear explanation of the regulations, and also for the helpful meeting that he convened last week, the input of officials and the follow-up information. That is a productive way to deal with the issues that emanate from regulations such as these. If there is a downside to that approach, having lots more information just gives scope for further inquiry and questions. I shall try to be brief on that front.
It will come as no surprise that we support the underlying philosophy reflected in these regulations. As the Minister said, they derive from legislation of the previous Government—the 2007 and 2009 Welfare Reform Acts. I believe that we have a consensus on the importance of work and the obligations of government to help those who can work get into work and those who are not yet ready for work to get closer to the labour market. There should be an obligation on individuals to engage with the support available and, with appropriate safeguards, sanctions for those who unreasonably refuse. That consensus also acknowledges that there are some for whom it is not reasonable to expect engagement.
As ever, the devil is in the detail, as the noble Lord, Lord German, said. As we have heard, this is the first time that the Government have activated provisions that can require ESA customers to undertake specific work-related activity. For this to work, clearly it is important that the correct judgments emanate from the work capability assessment. As several noble Lords have recognised already, that has recently been the subject of considerable debate in your Lordships’ House. The appropriateness of the descriptors and the capacity of Atos remain issues. As with other noble Lords, such as the noble Lord, Lord German, and the noble Baroness, Lady Thomas, we await further developments on Professor Harrington’s work.
What is now required from the WCA is not only to advise on whether an individual is capable of work and therefore directed to JSA, or has limited capability for work-related activity and enters the support group, or has limited capability for work, but also, in the latter case, to make some judgment about how long it will be before the individual can be expected to be fit for work. Is this correct? In a sense, this is a new development. It is important because, as we have heard, those expected to be fit for work within six months will be required to access the support provided by the Work Programme rather than be able to volunteer for it or, presumably, potentially be subject to mandated work-related activity by JCP advisers. Is not the emphasis on the timescales adding another dimension to the challenges of the WCA, especially for those with mental health conditions, fluctuating conditions, autism et cetera?
Can the Minister say how the health professional at the WCA stage will be able to make an authoritative assessment of when an individual to be assigned to the work-related activity group will be fit for work in the absence, possibly, of knowledge of the sorts of work-related activity which are available to the individual? Can the Minister confirm—I think that this came from our meeting—that anyone assessed as being on ESA but with a prognosis of being fit for work in, say, six months will have to be reassessed through the WCA before the designation is changed?
Does not the designation of when someone is likely to be fit for work have a significant implication for providers? Someone going on the Work Programme from an ESA flow deemed likely to be fit for work within three months attracts a potential fee which is nearly double that of someone in broadly similar circumstances but who might be deemed fit for work in, say, six months. Is this right? The argument that the Minister advanced is that the difference is that somebody volunteers. But the judgment that seems to be made is that if somebody from an ESA flow is on a work-related activity group and likely to be fit for work within three months, that attracts something like double the fee to the provider of somebody who is broadly in the same circumstances but who will not be fit for work for a longer period, simply on the basis that they have volunteered for the programme. That second category of person could be argued to be a harder to reach person, yet attracts a smaller fee for the provider.
Obviously, someone deemed fit for work would move to the JSA regime and be subject to wider conditionality—for example, jobsearch. But for the purposes of the payment arrangements under the Work Programme, do they keep the status that they had when first referred to the programme? If so, the WCA assessment would have a particular significance for providers.
Incidentally I note that ESA self-employed customers—presumably, previously self employed—will not have access to the Work Programme. Why is this? The details of payment arrangements provided by the Minister under the Work Programme certainly demonstrate strong financial incentives for some groups, but could we be told the projected annual numbers for the first three years for the following ESA groups—on the ESA flow, those likely to be fit for work within three months, and the ex-IB likely to be fit for work within three months?
As the noble Baroness, Lady Thomas, and the noble Lord, Lord German, have said, the Merits Committee raised concerns over the capacity and training, which I share. The Minister touched on that in his presentation of these regulations. It is clearly of very great significance. The existence and application of sanctions has been the subject of considerable debate both during the passage of the legislation and since. We support the necessity of sanction arrangements as a means of ensuring compliance, provided they have due regard to good cause for non-compliance and are sensitive to the circumstances of vulnerable people. We support the Government in concluding that it will be JCP decision-makers who will make decisions about sanctions, not providers. But perhaps the Minister can clarify for us the policy in relation to vulnerable customers and where responsibility lies.
My understanding is that before any sanction could be levied on customers with a mental health condition, a learning disability or a condition affecting communication and cognitive skills, some personal contact should be made, if necessary a home visit. I detect some weakening of this, certainly in the response given by the Minister of State in the other place when these regulations were debated. What is the current policy? Where will responsibility fall between the provider and Jobcentre Plus? What contact will be made by the provider before referral for a sanction and what contact after but before a determination? Is there clarity on this in the contractual arrangements? What monitoring arrangements will be in place? Can the Minister take the opportunity categorically to confirm that there are no targets operated by Jobcentre Plus relating to numbers to be sanctioned, whether for ESA, JSA or any other benefit?
It is noted that the right of lone parents to restrict availability for work-related activity when there are children between the ages of 13 and 16 is to be considered on a case-by-case basis; again, the noble Lord, Lord German, touched upon this point. This consideration is to take account of the individual needs of the child and, among other things, their ability to remain unsupervised. What on earth sort of guidance is to be given to help with this consideration?
We have touched on the Work Programme a little in so far as it is relevant to ESA and work-related activity. I hope that we will have the opportunity for a fuller debate because it is an ambitious project that we want to see succeed. The flexibility of the black box approach and individually tailored support are to be welcomed. Strong financial incentives for helping the hardest hit to get to the labour market is obviously the right approach. Before we have this debate, though, perhaps the Minister can explain why the ex-IB work-related activity group who are unlikely to be fit for work within three months should have treble the potential reward for the providers than ESA customers who are further from the labour market. Will the Minister say a little more about why the Work Programme negates the need for the work-focused health-related assessment?
I look forward to the Minister’s reply on this and other matters, but these regulations are an important step forward and they have our support.
My Lords, I thank all noble Lords who have taken part for the support for the general principle of what we are trying to do here. This is a component of a very large change, with quite a few moving parts. I note the accusation of the noble Baroness, Lady Thomas, that the only person who has all the moving parts in their head is me. We are slowly getting it out, and this is one element of that process. As I said at the start, those people who are disabled and cannot work will get unconditional support, but we have an obligation to support large numbers of people who could get into the labour market. Many disabled people are in the labour market—not enough, but I think that the figure is around 40 per cent of those who are disabled.
The noble Lord, Lord McKenzie, is very fond of quoting my work, which always makes me blush with embarrassed pride. I also said in the report to which he referred that if the Government do not engage with these people, it is a dereliction of duty. One of the things that we are trying to tackle here is to stop that dereliction and help these people get back to work. I emphasise that what we are talking about is not getting people to work and sanctioning them for not working; this is about work-related activity. We are talking not about the intensive requirements of taking a job but about preparing for that process.
I shall try to deal with the enormous number of questions. I am not sure that I will be able to answer all of them, just because of time and volume. One of the issues that noble Lords have raised is training. The training that we offer will provide much greater emphasis on the need for personalisation and flexibility, which my noble friends Lord German and Lady Thomas were concerned about. There are new demands on staff to do with flexibility. We will provide the products and tools to support the front line in diagnosing customer need precisely. As to decision-maker expertise and who takes these decisions, staff receive extensive training so that they are able to make decisions. They have access to comprehensive, up-to-date, clear procedures and guidance for ESA decision-making, which includes how to handle difficult situations and provide customer care. The delivery of that learning is supported by Atos Healthcare.
My noble friend Lord German was concerned about how good cause would be defined. If it is too specific, it would restrict the ability of decision-makers to take into account the circumstances of individuals. However, examples of good cause include such things as caring responsibilities, attendance at court or at funerals, acute personal illness, and the availability and affordability of childcare. My noble friend raised a specific point about the parents of schoolchildren when they go through the 13-year barrier. The power to set the activity must be reasonable in the circumstances of each customer. The adviser will need to consider all the circumstances of lone parents with children aged between 13 and 16 before requiring work-related activity after school.
The other key issue that my noble friend Lord German raised was that of checks and balances before any sanctioning. I remind noble Lords that the sanctioning regime here is not the tougher one that we are talking about with JSA. It is a sanctioning regime that says that some of claimants’ money will be reduced until they comply. It is a very different and much softer sanctions regime generally. Within the legal framework the adviser must reconsider the action plan at the request of the customer, if the customer feels that it is no longer appropriate. The adviser may then postpone the work-related activity that had been agreed. Clearly, when we talk about fluctuating conditions, this is exactly the kind of area where they apply.
Differential pricing was raised by both my noble friend and the noble Lord, Lord McKenzie. I am almost reluctant to get into the detail of this; the reasons why particular groups have different prices are very detailed. The blunt answer is that we have never priced people precisely. It has not been done. We have created some categories and we will learn, as the process rolls through, how those prices really work. We had to start somewhere. We had to get some broad categories that were definable, and which we could record and analyse to get this differentiation. It is clear that it would be very tough in many cases to get the people who have been on incapacity benefit for a long time and then moved into the ESA category into work. For some it would be easier but for many it would be tougher. By and large, we have aimed to achieve price differentiation which reflects reality. I expect that that system will become much more sophisticated as it moves along. I am hopeful that we can start to apply differential pricing to groups of people who we know fall into difficult categories, and that this will help us to tackle the most difficult problems. People coming out of prison is an area where I would like to see funding focused to address the problems involved.
We can debate exact pricing all day long but another factor is involved, as noble Lords will be well aware. The DEL-AME switch, on which this process is based, is acutely complex. It is a pretty simple thing to describe in theory but I do not encourage any of your Lordships to negotiate it in detail with the DWP and the Treasury. It is a very complicated matter, which it would be counterproductive to describe in detail.
The noble Lord, Lord McKenzie, asked a specific question about reassessment. I assure him that after the prognosis of three months or six months is made, another work capability assessment is undertaken before someone moves into the JSA category. The category in which you enter the programme is the one in which you stay. In other words, the providers have every incentive to move someone through the whole process.
I understand what the noble Lord has said about the category in which you end up. I accept that the evidence base is being built, but to a certain extent it is determined by clear objective factors such as whether you have been on IB or are on ESA, but also by the prognosis that the health professional has made at the WCA, which is much more subjective. A lot could hang on that decision—for example, whether the relevant period is three months or a bit longer. What is our experience of the ability of healthcare professionals to make those fine judgments?
The noble Lord makes a very interesting and valid point. We have spent a lot of time on this. Health professionals find it very difficult to make accurate prognoses for periods lasting many months. One of the reasons why we have the three and six-month periods is because the prognosis in those cases is much better and much more reliable. Rather than handing everyone in the work-related activity group over to the providers we thought that we would de-risk the situation by having three and six-month periods. We spent a lot of time wrestling with that point as we devised the groups that were going to go into the Work Programme.
I will write to the noble Lord on his question about the flows as I do not have the relevant figures to hand. My noble friend Lady Thomas asked about the closure of some JCP offices. We are planning to offer all affected staff relocation. Many questions were asked but I hope that I have covered all the key ones. If I find that I have not, I will write to noble Lords.
Let me close by saying I am convinced that this is the right way forward. I mirror what my noble friend Lady Thomas said: get this right and there is a huge prize here. I think, genuinely, that we will do this right—and we will watch it. I was asked about assessment and evaluation by the noble Lord, Lord German. We have a pretty elaborate evaluation program running. We will get that evaluation in two waves, the first this autumn and the second in early 2012. We will look at seeing exactly how this customer experience works in some detail, so we will get some flavour of that pretty soon. I have no doubt that we will be debating it at that stage, which will be quite interesting. I commend these regulations to the House.
Social Security (Electronic Communications) Order 2011
Motion to Approve
My Lords, if passed, this order would allow jobseeker’s allowance to be claimed, administered and maintained online and would open the door for some online administration of other benefits. This change would maximise efficiency and improve customer service. In addition, it would reduce the use of paper and develop a platform for electronic claims for other benefits, including the new universal credit. I confirm that the provisions of the draft order are compatible with the European Convention on Human Rights.
First, I shall say a few words on the department’s current position in relation to the Merits Committee. I take the duty to provide sufficient information to Parliament to enable proper scrutiny of this department’s legislation seriously. Senior officials from the department have recently had a constructive discussion with Merits Committee staff with a view to improving how we handle our secondary legislation. I assure your Lordships that I will do everything within my power to make sure that we meet the proper and reasonable demands of this important committee. In this instance, I know we were able to provide the additional information that the Merits Committee requested. I hope that additional information will assist this House during the course of this debate.
The Department for Work and Pensions is improving its customer service delivery by increasing access to its services through self-serve online channels. As part of this, the department would like to introduce a secure, automated online service. Customers will still be able to contact the department by writing or by using the telephone and face-to-face appointments will still be available. The current situation is that, at times, legislation requires the use of paper-based documents or signatures, or at least may be interpreted as requiring this. For example, currently a jobseeker’s agreement must be in writing and must be signed by the customer. This order, which is made under the provisions of the Electronic Communications Act 2000, amends social security legislation to allow electronic communication and storage. The order will also develop the department’s use of electronic signatures.
I shall take a few moments to run through the different possible formats of electronic signatures. I know that they are used in a lot of different ways and, if your Lordships will excuse me for being a little bit techie on this, I think that will help our debate. An electronic signature is something associated with an electronic document which performs a similar function to a traditional signature. It can be used to confirm the authenticity of an electronic communication—in other words, that it comes from a particular person. Another use of electronic signatures is to establish that the document has not been tampered with. Industry use is based on codes and ciphers, which essentially make the signature unique. For example, text can be encrypted and turned into letters or numbers, which can be deciphered only by someone who has the correct password or key. For the vast majority of services a combination of source data from the computer, or some other device and passwords, picture and word combinations, and other means of authentication form the basis of electronic signatures.
Secondly, there is authentication as a form of electronic signature. This involves collecting facts and personal details to enable customers to prove their identity. This may include pin numbers, secret questions and answers, or collecting data such as mother’s maiden name and date of birth. This form of electronic signature means people can log in by answering a series of questions, and we essentially take their successful completion of the authentication process as confirmation that they are who they claim to be.
Finally, there is physically signing an electronic pad, as you do when you accept a parcel. This signature can then be digitally saved and attached to official documents, removing the need to print and store vast reams of paper. Research has shown that the psychology—at least the current psychology—of actually signing a jobseeker’s agreement makes people more likely to follow through on their actions.
The powers that we are talking about allow all of these three ways of getting electronic signatures, although in reality we shall be using only authentication and physically signing an electronic pad.
We have also ensured in Clause 101 of the Welfare Reform Bill that social security legislation will include these broad powers to support the delivery of the universal credit. We will have a chance to debate these matters again when we come to that clause later this year.
In this case, the order will mean that our customers will not only be able to make a claim for jobseeker’s allowance online, but they will also be able to notify us of other changes in their circumstances, such as changes to their income or a change of address. In addition, they will be able to provide their signature using an electronic pad. This would replace current paper signing and would mean signatures collected from people confirming that they meet the conditions of entitlement for jobseeker’s allowance, or agree to the conditions of a jobseeker’s agreement, could be electronically stored.
We know that the majority of customers already regularly use the internet and would welcome the opportunity to do departmental business online. Departmental research has shown that 86 per cent of jobseeker’s allowance customers surveyed were using the internet and 67 per cent had home internet access. So far almost 700,000 customers have used the service, despite very little encouragement or training. With support, the department hopes that, by 2013, 80 per cent of customers will make changes and claims for jobseeker’s allowance online. We know that not everyone will be able to use an online service or will want to. Customers will still be able to contact Jobcentre Plus in writing or by using the telephone. We have no intention to make online services compulsory. We also accept that some customers may need help with online services. Arrangements will therefore be made to provide that support. Interestingly, our research shows that a large number of people with a bit of support can be fairly easily nudged to use this particular channel.
Jobcentre Plus staff will receive training and support so they are able to assist customers and additional support for staff will be provided through the use of coaches and buddies in each office when the service is launched. Jobcentre Plus staff will play a key role in encouraging take-up of the online service. They will be able to provide assurances about safety and security to those customers who may be nervous about using online services. They will also be able to arrange training for customers who have never used the internet before. We will be making customers aware of where they can obtain access to computers—for example, in libraries—and they may be able to arrange access and training via providers such as UK Online.
Customer security will be crucial and must be protected. The department has worked with security experts from both the private and public sectors to develop a robust online service that people will be able to use in confidence. The Government regularly gather intelligence and work with other security organisations to ensure that we keep up to date with new threats to online systems. Numerous organisations, such as banking and insurance firms, already use online services safely and we will continue to draw on their experience as we design and develop our processes.
Anyone choosing to use the online service will have to go through an identification process before they can set up an account and be provided with a unique pin number. We are aware that some customers may need to use shared or public internet access points and we will provide advice and guidance to people to help them protect their online security. In addition, all identified security risks to the information systems will be assessed and addressed through formal accreditation, in accordance with the departmental information security standards. We will review that biannually.
In conclusion, at one level, this order would allow the Department for Work and Pensions to provide another option for people who need to contact the business. It will bring the service into the 21st century and mean that from 2012 the online service will be available 24 hours a day, seven days a week—allowing people to access services when it is convenient. In addition, the anticipated shift to using online services will improve the services to customers by freeing up advisers so that face-to-face contact can focus on supporting people into work. The technology will minimise the risk of identity fraud because the electronic signing pads will measure pressure, angle of the pen and speed, as well as matching the signature. An electronic signature is actually more secure and much more difficult to forge than it is when it is on paper. Electronic records will reduce the need for people to repeat information to advisers and for advisers to re-input basic information. It will reduce costs, save paper, and help the department to meet its efficiency challenge. Importantly, almost most importantly, as we press ahead with welfare reform, this will provide the basis for the electronic systems supporting universal credit.
I therefore seek approval for this order and commend it to the House.
My Lords, I thank my noble friend for such a detailed explanation. He has taken away the need for most of my questions, which were all about electronic signatures, but now that I have more information it gives rise to more questioning. However, I should say that this is about welcoming in the 21st century. First, there was the horse, then there was a car with a man with a red flag in front, and then there was a computer, and people went on to learn about what was inside it. Now, your Lordships are able to use iPads, iPods and, of course, Android devices in the Chamber. We are moving to a change that has to come; and it is one that of course is to be broadly welcomed, because all of us accept that IT should release people. It gives you an ability to do more, to do it more swiftly and, I hope, more securely.
Can the Minister readdress his remarks about electronic signatures and security to this House in the way it votes? After all, my noble friend has given a brilliant explanation of why electronic voting would be absolutely secure in this House. That is a debate that we can have for some considerable time. It may not be appropriate, but it would work.
My questions are twofold. One is about the level of take-up that is likely. Has the department taken any soundings of what sort of numbers of people will want to use these services? What flows from that is therefore the provision that the department might need to ensure that it provides the right level of support for customers and, perhaps, equipment for customers to use. If so much more can be done online, insufficient points will be available in Jobcentre Plus offices. People will want to spend more time on them, and clearly the demand for an increase in the amount of equipment will motor ahead.
My second question relates to security. I think I heard the Minister say—perhaps he can confirm this—that once you have set up an account, access to that account will be by PIN alone. That is slightly worrying because there have been instances of people leaving themselves logged on to a public computer in, say, a library, with the next user simply taking over. Of course, there are very clever people who can identify PINs. That is why we are all asked to do more than simply enter our PIN. If you want to do online banking, you certainly have to do more than just enter your PIN. I wonder whether a double check will be there to ensure that people’s data are secure.
Thirdly, in the previous debate we talked about people’s action plans for their activity in this work-related group. Will those action plans be available to customers online so that they can review them and perhaps engage in some sort of dialogue with the adviser in a Jobcentre Plus online, thereby freeing up time but also giving them much more instant availability?
We are all aware of electronic signatures because the whole postal voting system in this country depends on a signature being scanned and being kept electronically as the test of whether people have voted correctly and are who they say they are in casting their vote. Technology has moved on, and I welcome the opportunity to move forward in this area. I hope that my noble friend will be able to answer my questions, but I am pleased to support the order.
My Lords, I thank the Minister for his explanation of the order and for not straying into too much technical jargon so that some of us, at least, were able to keep up.
We support the improvement in customer service delivery through self-service online channels. It is an approach which can be more convenient for customers and more efficient for the DWP. It is, indeed, a win-win situation.
As the equality impact assessment indicates—supported by research by the Joseph Rowntree Foundation—digital services can, in particular, assist disabled people to complete transactions and arrangements personally, thereby reducing reliance on others.
As the Explanatory Note makes clear, the order is enabling rather than mandatory. It asserts that those who do not wish or have the means to take on the new arrangements can continue to use the existing postal, face-to-face and telephony channels. However, it goes on to say that existing claimants will be “invited” to switch to the new service. New claimants will be able to access it via the Directgov website and will be encouraged to do so. As we have heard, the aim is for 80 per cent of all JSA claimant transactions to be done online by 2013. The obvious question to the Minister is: what practical safeguards will be available to prevent customers being encouraged to use the new arrangements when they are unfamiliar with the technology? This could clearly act as a deterrent to individuals claiming or sustaining a claim.
The equality impact assessment explains that all jobcentres will have a “digital champion”, whose role will be to act as ambassador for online services to improve customer confidence and the take-up of digital services. Particularly given the news reporting of job cuts at JCPs, can the Minister say how many jobcentres have a champion in place and what the plan is to complete this commitment? Can he also say something about special customer records and the capacity of the system to provide for appropriate levels of security for these particularly sensitive cases? How are these being catered for within the system?
There is—and has rightly been—strong emphasis on training for Jobcentre Plus staff, especially to be sensitive to customers who may have mental health conditions, fluctuating conditions or communication difficulties, which might be identified at various stages of the customer journey. Is the Minister satisfied that these opportunities are not diminished by the use of online services? Will system failures automatically be factored into compliance failure decisions to prevent people being chased—or potentially sanctioned—simply because the system has gone down?
With those few brief questions, we are happy to support this order.
My Lords, I thank noble Lords for joining in this debate. I particularly agree with the point made by my noble friend Lord German about how nice electronic voting would be in this House, particularly given the business of the road outside. As contributors to the debate have pointed out, the provisions are really about getting the department into the 21st century, whether with iPods, iPads or Android devices.
My noble friend asked a question about take-up. As I said, our aspiration is to get to 80 per cent. At the moment, 67 per cent of people have access to a PC. Noble Lords may not be surprised to know that we have done quite a lot of research on this. I might share some of those early findings, because they are rather interesting. Well over half of people in the JSA group are now in a position to take this up. The two categories at the top—“Ready, willing and able” and “Able and persuadable”—take us well over half. Then we go through “Nudgeable”, “Unconfident” and so forth, and end up with a small group—below 20 per cent—made up of what we call “Intensive support required” and “Multiple barriers”.
My noble friend Lord Elton made the point that some people will always find this difficult. Some blind people are able to use electronic things, or telephones that translate information; but clearly we are not talking about first-order processing at the moment. For those groups, we are staying with other methods. The noble Lord, Lord McKenzie, made a point about capacity. By freeing up the capacity of Jobcentre Plus from looking after people who can essentially look after themselves, we can concentrate that time and energy into the people who really need the help.
My noble friend Lord German asked about action plans. They are not the first things that will go on, but in time they will. Clearly, the whole structure of the universal credit is to put it all online; enormous activity is going on in the department at the moment to structure that electronic relationship.
My noble friend asked about the security of PINs: he was cynical about whether the PIN would be enough. The answer is that security is changing all the time. I could give you an answer today, but the department is looking all the time—as are banks and anyone with sensitive online access systems—to change and develop. A war is going on between cybercriminals and those who maintain the systems, and security levels change. I am convinced that whatever we have today in the way of PINs and other security, we will be watching all the time to make sure that we do not get caught out.
We aim to give a lot of information and instruction to people who are not using their own, more secure computer, but a more public computer, that they should log off. We are looking at systems that will make sure that once a file is closed, one cannot get back into it. We are looking at very active systems. That is one of our biggest relative insecurities when compared, for example, to banking products: people may be using not their own computer but a more public one. We are looking at that in great detail.
The noble Lord, Lord McKenzie, asked rather fewer questions than usual. However, the difficulty and quality of those questions was absolutely up there with his normal track record. He asked about system failure. Clearly we will look to include that under “good cause”. It would be unreasonable to penalise someone who was unable to access our system because it had broken down. I think that I answered his point about training and releasing people to do more face-to-face interviews. Of course, sensitive records will be very tightly controlled as part of our security. On the question of safeguards, we are looking to make sure that when people who are less confident with the system are helped into it, they will be helped in a comprehensive way and we will not do anything that will leave them more vulnerable. That will be part of the process.
This will not be the last time that we discuss technology: I suspect that we will discuss it much more than we have done, in this and many other contexts. I thank noble Lords for their contributions and commend the order to the House.
House adjourned at 5.39 pm.