House of Lords
Wednesday, 18 January 2012.
Prayers—read by the Lord Bishop of Chichester.
My Lords, we obviously do not know how many people will be charged, but we do now have a very good picture of how widespread phone hacking was. Is it not clear that the phone hackers and those who employed them believed that their power put them above the law? Given that, is not one of the lessons of this whole scandal that we should never again allow one proprietor or one company to own a disproportionate amount of the British media?
My Lords, I am not going to comment on the last point made by my noble friend, but no doubt the House and others will have listened to that. The police have spoken to about 1,800 people, of whom, as I said, 800 are likely victims. Whether charges will result from those 17 arrests is something on which I cannot comment.
My Lords, is the Minister aware that the appalling level of these arrests and prosecutions reflects badly on the British press and was made possible only by the use of no-win no-cost litigation by those who were complainants, including me. Why are this Government in their legislation on legal aid quite prepared to meet the unanimous demands of the press that we reduce their costs in such situations and yet increase the costs of individual complainants and reduce their access to no-win no-cost litigation? Can he assure the House that those he has mentioned as having been arrested, including the Prime Minister’s former adviser, Mr Coulson, played no part in changing the policy of the previous Government, who rejected the request from the media?
My Lords, I can agree with the noble Lord that this has not been the finest moment for the British press. His remarks about no win no fee go wider than the Question on the Order Paper, but that is a matter that we will obviously have to take into account. On the broader issue of phone hacking, phone hacking is obviously illegal, but we must await the outcome of the Leveson inquiry before we make any final decisions in this matter.
My Lords, would it not be in the public interest for the press to publish, however they gained knowledge of it, activities by a Minister, in his working time and in his office, which were quite clearly contrary to all standards of decency and the Government’s own code of conduct for Ministers?
My Lords, what the press publish is a matter for the press and not for us, but I note what my noble friend has to say about the activities of some people in the past. I repeat that we feel that we should wait until the inquiry being conducted by Lord Justice Leveson has been concluded.
Does the Minister agree with the editor of Private Eye, who said at the Leveson inquiry yesterday that we do not need new laws to govern the press, that phone hacking, paying the police for evidence and being in contempt of court contravene existing laws, and that we need proper and vigorous enforcement of them?
My noble friend makes a very good point. All the matters she referred to are against the law, and we should always be very loath to pass new laws purely because we see a problem happening when there are existing laws that serve that purpose very well. The important matter is to make sure there is proper enforcement.
My Lords, why was the Minister so reluctant to comment on that part of the question asked by his noble friend Lord Fowler about concentration of press ownership? I thought the Minister belonged to a Government who were showing some concern about the wilder excesses of capitalism. Is not excessive concentration of press ownership a clear illustration of that?
My Lords, I think some of the concentration of press ownership happened during the Government of whom the noble Lord was such a distinguished member in former years. I do not think it would be appropriate, as I said, to comment in advance of the inquiry that will be concluded in due course, in his time, by Lord Justice Leveson.
My Lords, can the Minister tell the House, in general terms, whether systems of state security dedicated to the surveillance of communications worldwide can cast any light at all on the question of phone hacking? If that is the case, subject to proper safeguards, can such information can be relayed to the Leveson inquiry?
My Lords, I am not sure I can assist the noble Lord on that latter point. I can say that my understanding is that it is relatively easy to hack into texts and voicemails on individuals’ mobiles but very difficult to get into live calls on a mobile, which is something that only possibly the security services and others would be able to do. These things are possible but are much harder. In the main, we are talking about hacking into texts and voicemails.
Perhaps the noble Lord can help me in my ignorance. Can he say whether the Leveson inquiry’s terms of remit cover the subject that was raised by the noble Lord, Lord Fowler, about the concentration of media ownership? If not, can he say what the Government will do about it?
My Lords, that obviously is a concern and is one of the matters that was considered in the report from Dame Elizabeth Filkin, which was published on 4 January this year. We expect the police service as a whole to study the recommendations of that report, and various other reports including that from HMIC, and draw the appropriate conclusions.
My Lords, I appreciate that the question about the implications of the present Bill on legal aid was not in the original Question asked by the noble Lord, Lord Fowler, but it seems a reasonable extension of it. Although I would not want to politicise the thing in the way that the noble Lord, Lord Prescott, did, it does seem there is a question about disproportionate power. It is not so much about the concentration of the power of capitalism as the concentration of power against the relative powerlessness of the individual. That does seem to be a legitimate extension of this and I would be grateful if the Minister could reflect on that.
My Lords, I did not think that the noble Lord, Lord Prescott, politicised this question unnecessarily and, similarly, I do not think that the right reverend Prelate has politicised it. However, I do think that does go beyond the Question on the Order Paper.
Shipping: Tax Revenue
My Lords, estimated tonnage tax liabilities were provided using database information from Her Majesty’s Revenue and Customs. This general approach is regularly used when answering questions on tax.
To construct reliable estimates of tax received would require HMRC checking each tax return, linking it with associated payments and estimating how much tax received related to tonnage tax. This exercise would be extremely time-consuming. However, revenues received will be broadly similar to those figures already given.
The Minister is aware that this is a successful tax. It increased the British fleet from 4 million tonnes to 18 million tonnes and that is an important factor. But I cannot accept his reply that he knows what the liability is and knows what the profits are but we cannot afford to find out what the tax liability and payments are because that would cost more, as he said in a letter to me, than a parliamentary reply. That is unacceptable. We are entitled to know.
However, I am more concerned about this tax.
I am concerned about the recent transfer of the Cunard steamship company, which enjoys this fiscal arrangement, to Bermuda. It has retained the tax but been removed from the statutory requirement to have a captain or crew of a certain kind on its ships. That is unacceptable.
My Lords, I am not sure how I interpret that question, but I think the relevant bit relates to the original Question, which is to do with the numbers that I gave the noble Lord, Lord Prescott, in my Written Answer. I can assure him that it is standard practice to give numbers based on the liability in respect of years. That is done in innumerable Answers to Questions. The numbers in this case, as is normally the case, will be broadly reflective and close to the actual tax paid. It is simply that the tax paid gets paid at different times according to the individual circumstances of the company.
I am happy to recognise that the noble Lord, Lord Prescott, was Secretary of State for Transport and many other important things at the time that this important tax was introduced. Just to correct his figures, the gross tonnage of British shipping in 2000 was 5.8 million tonnes and, indeed, it has increased to 18.2 million tonnes since then.
My Lords, perhaps I can help. One of the motivations for providing the option of a tonnage tax was significantly to enhance the training and safety of the shipping fleet. Has the tax achieved that purpose and are any records kept and tracking done on those issues?
My Lords, the tax has achieved an estimated reduction of £45 million of tax which the shipping industry in this country would otherwise pay under conventional corporation tax. It means that we have a more vibrant and healthy shipping industry in this country. Of course there are many other associated issues that my colleagues in government keep under review and discuss with the industry.
My Lords, is the Minister not concerned that the obfuscation involved in his replies to my noble friend Lord Prescott's questions merely reinforces our anxiety, which has also been expressed by the Public Accounts Committee of the other place, that the Government may be guilty of treating large companies somewhat more favourably than ordinary taxpayers, and that this may be another instance of cover for a somewhat cosy deal?
My Lords, I am surprised that there are any suggestions of some cosy deal. After all, this was a tax introduced by the noble Lord’s Government. He now says that he might have done a cosy deal. It has put British shipping ownership on a level playing field with other countries in Europe; it involves state aid, and the EU at some stage will review it. If anything, the complaint that we get is that other countries take unfair advantage of the EU dispensations.
As to what the other House has to say, I am sure that noble Lords will not need reminding that it was as recently as 1628 that this House stood up to another place on the question of tonnage and poundage and got us into frightful trouble, not least with the attempted impeachment of the Duke of Buckingham, who put forward the proposal. So I am certainly not going to cross swords with another place on this topic.
I listened with interest to the Minister’s reply to the noble Baroness, Lady Kramer. He said that the tax, by reducing the amount payable so far below what would be payable in corporation tax, led to a huge increase in tonnage. Does that not indicate that there ought to be a similar movement in corporation tax generally and that it would be hugely successful?
My Lords, what it indicates is that tax competition and not having tax dictated on some uniform basis from Brussels is something that we will defend to make sure that where appropriate we can take advantage of that. We will have the lowest corporation tax regimes in the G7 and then one of the lowest in the G20. That will make our industry highly competitive on tax.
My Lords, I declare an interest as chairman of the Merchant Navy Association. I am sure that the Minister will agree that from our maritime colleges in this country we produce some of the best qualified deck officers and engineer officers who operate in ships around the world. Does he agree that we should give more support to cadets going through these schemes? I think that there is a requirement around the world for more of these people, and we could actually provide more assistance in the way of apprenticeships to enable that to happen.
NHS: Transition Risk Register
My Lords, the Government are appealing the Information Commissioner’s decision that the transition and strategic risk registers should be released, for the reasons explained in my recent statements to the House. The tribunal has initially fixed the oral hearing for 2 and 3 April, but my department is urgently discussing with the tribunal how the case may be expedited further. Regrettably, however, it is not possible for this to take place before Report commences.
My Lords, the Minister’s reply will be disappointing to many Members of this House, who believe with the Information Commissioner that,
“there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government's policies on the modernisation will bring”.
Moreover, the noble Earl himself is, I know, on record as saying that he is anxious to get the matter decided as speedily as possible. Are the Government considering a delay in the timing of Report, so that the House can have before it all the information that it needs to ensure that this important Bill is subject to detailed scrutiny, which is such a significant function of your Lordships' House?
My Lords, I understand the noble Baroness’s disappointment. As I have said, my department has made strenuous representations to ensure that this process is concluded as speedily as may be possible, consistent with the need for both parties to assemble the necessary evidence and present their cases properly. In answer to her second question, of course we have considered the timetable for Report in the context of this process, but we have concluded that if the Bill is to go through its full passage by the anticipated time of the end of the Session we need to start Report at the beginning of February. So, regrettably, our conclusion is that the start of Report cannot be delayed.
I understand the Government’s reluctance to publish risk registers. Governments do not tend to be keen to publish documents that are going to be deeply embarrassing to them. However, will the Minister invite the Information Commissioner to identify key sections of the risk registers that really should be before the House of Lords before it undertakes its work on Report, and will the Government and the Minister comply with the Information Commissioner’s recommendations?
My Lords, this issue turns on a disagreement between ourselves and the Information Commissioner about where the balance of public interest lies. Our view is that the balance of public interest does not lie in disclosure, and his view is the opposite. It would be likely, if we gave the Information Commissioner a second opportunity to look at this, that he would come to the same conclusion as before, so we have to let due process occur.
My Lords, the strategic health body in London was perfectly content to make the register of risks on the health Bill available, so the House needs to know, first, what the difference is—except in terms of size—in the national Department of Health making its risk register available. Secondly, I realise that in appealing the Information Commissioner’s decision the Government have said, in effect, that this decision has cross-government implications. Does the Minister accept that it also has wider implications for Parliament? In this House, our ability to scrutinise legislation effectively must be in doubt if any Government withhold important information from us, so what course of action does the Minister suggest that noble Lords in this House should take under these circumstances?
My Lords, to answer the second part of the question first, a substantial number of the risks pertaining to the Bill are already in the public domain and we are considering whether there is scope to draw these sources of information together in a single place, so that noble Lords can look at them more easily. To answer the first part of the noble Baroness’s question, I made inquiries about NHS London. Its situation is very interesting and quite different from that of the Department of Health. NHS London developed its risk management strategy with a view to it being visible to stakeholders and the public, as its document says. It is therefore a reasonable assumption that officials will have worded their risks for inclusion in the register in the knowledge that that wording would be likely to form part of a document placed in the public domain, so there is a very real difference between the two situations.
My Lords, risk needs to be thought about and assessed thoroughly and often in worst case terms in order to inform policy development and implementation. Risk registers are therefore a basic policy management tool and, for robust risk management to take place, officials have to be free to record all potential risks fully and frankly, with absolute candour, in confidence that anything they say will not be disclosed. If officials knew or believed that what they wished to say was going to be disclosed, that would inhibit them in expressing views fully and frankly. That, in turn, would erode confidence in policy-making and impede good government.
My Lords, apart from the specifics of this case, there is clearly an issue of constitutional significance when this House is being asked to scrutinise legislation without having available to it all the centrally relevant information. That is clearly the case here. Which committee of which House would the Minister recommend looks at this particular constitutional issue?
My Lords, there is a Motion on this very subject before the House in my name, and I hope that there will be an opportunity well before we reach Report for it to be debated. Since public companies are under strict obligations to publish their risk assessments—they have to weigh very carefully what they say because they could be sued by shareholders in their companies—why is it so different for Her Majesty’s Government in the circumstances in which the Information Commissioner has expressed the view that this is a legitimate case that ought to be made available?
The Freedom of Information Act was framed specifically in a way that would protect the process of policy-making within departments. Our view is that the risk register forms an integral part of policy-making and implementation; the Information Commissioner came to a different view. It is about the balance of public interest here: we wish to see this process adjudicated further.
My Lords, following the outcome of the 2011 Scottish Parliament elections, the Government accept that there is a case for holding a referendum in Scotland. If there is to be a referendum, we believe that it should be legal, fair and decisive. Therefore, we are consulting on the best way to achieve this. I can reassure the noble Baroness that the Government look forward to receiving views from across the United Kingdom during the consultation process.
My Lords, does the Minister agree that the break-up of the United Kingdom will affect us all throughout the UK? If so, will we all have an equal right to make our views known, and why not through a referendum? We have had an equal right to express our views on AV; we are told that we will have an equal right if competences move from this country to the EU, so why is there not an equal right throughout this country to vote on the most important constitutional issue to face any of us in our lifetime?
My Lords, I am sure that most, if not all, of your Lordships would find it very grievous indeed if the United Kingdom were to break up. Nevertheless, in the 11 referendums that have taken place since 1973, only two were held nationwide. Indeed, previous referendums have been held in only one nation of the United Kingdom—in London and in the north-east of England. We believe that whether or not Scotland should leave the United Kingdom and become a separate independent state is a matter for the people of Scotland. It would not be good for relationships within the United Kingdom if it were felt that some parts of the UK had been prevented from doing so by others. Our sincere belief, which I am sure we share, is that that will not happen—that those of us who believe that the values which we share across these islands are to be upheld will win a comprehensive victory, and that Scotland has contributed to the United Kingdom in the same way as the United Kingdom has contributed to the good of Scotland.
Does my noble and learned friend not agree that if the separatists in Scotland wish to leave the United Kingdom, that is a matter that needs to be settled in Scotland? If, on the other hand, the so-called devo-max option is being considered, whereby matters other than foreign affairs and defence are considered in Scotland, that is a matter for the United Kingdom as a whole. It would effectively create an English Parliament and a federal Parliament, and that would have to be settled by a UK-wide referendum.
I agree with my noble friend that if the separatists were to have their way and Scotland were to vote to leave the United Kingdom, that should be determined by the people of Scotland. I also agree with him that the so-called devo-max proposal, as far as one can understand what it is—in our exchanges last week, noble Lords suggested that it was a product without a brand or a brand without a product; I cannot remember which way round it was—has implications for other parts of the UK, and we are certainly well seized of that fact.
My Lords, as a Scot, I do not want separation. I feel strongly that there should be only one question in the referendum, and one question alone. I ask the Minister to give some advice to the Prime Minister: the best thing that he can do would be to stop appearing arrogant in his interventions. It does not help those of us who want to retain the United Kingdom.
My Lords, one of the issues in the consultation to which I referred is the number of questions in a referendum, although the United Kingdom Government have made it clear that our preference would be for a single question on whether Scotland should remain part of the United Kingdom. To do otherwise and to import questions such as devo-max would only muddy the waters and lead to a very indecisive outcome. We want a referendum that is not only legal and fair but decisive as well.
The Government this week announced the establishment of the new Commission on the Consequences of Devolution for the House of Commons. There are some excellent members on it, but why was there no consultation on the membership with the Official Opposition? Who will be looking at the consequences of devolution for the House of Lords?
My Lords, the noble Baroness is right to draw attention to the fact that, as was announced yesterday, there will be a Commission on the Consequences of Devolution for the House of Commons. It is important to point out that the panel, which will be chaired by Sir William McKay, a former Clerk of the House, comprises six independent, non-partisan experts. There is no question over party balance in this. With regard to the consequences for the House of Lords, I am conscious that, although a Scot, I am a Peer of the United Kingdom.
Would the Government support a broad-based British organised public discussion of the United Kingdom, in the manner of the Scottish convention, to help inform the debate that should lead to the decision on whether to dismember the United Kingdom? Is it not critically important that people’s opinions are sought not just in a snap decision but having had an extensive discussion in which they can all be involved?
My Lords, I do not think that there is any chance of it being a snap decision. I am very conscious that, in your Lordships’ House, many Lordships bring to bear from their respective experience examples of where Scotland has made a contribution as part of the United Kingdom to the common good of Scotland and of where Scotland has in turn made a valuable contribution to the United Kingdom. In the debates that take place on this I hope that people will be prepared to speak out and show that our shared values are of great importance, and that it would be a backward step to break up our United Kingdom.
Commission for Architecture and the Built Environment (Dissolution) Order 2012
Motion to Approve
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (4th Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.
Schedule 1 : Civil legal services
36: Schedule 1, page 116, line 4, at end insert “and under section 140 of the Learning and Skills Act 2000 (assessments relating to learning difficulties)”
My Lords, from the outset I should stress that this amendment is strongly supported by the Special Educational Consortium of special needs disability charities. The consortium and I believe that access to a suitable and challenging education is a right for all children, and that parents need to be able to enforce a legal obligation when they are let down by the system. When parents do not have the financial resources to bring an appeal on their own, they should be supported to do so in the interests of justice.
The Government initially consulted on removing legal aid for all appeals against local authority decisions on the provision for children with special educational needs. I welcome the Government’s subsequent decision to retain special educational needs appeals for children of school age within the scope of legal aid. The Government clearly recognise the importance of these children’s entitlement to an appropriate and challenging education. Nevertheless, the Bill as currently drafted will mean that young people with special educational needs who are aged between 16 and 25 will no longer be eligible for legal aid.
The purpose of the amendment is to ensure that young people aged between 16 and 25 with special educational needs continue to be eligible for legal aid when appealing against decisions made about special educational provision. Removing access to legal aid for young people aged 16 to 25 with special educational needs, as the Bill currently does, is inconsistent with the Government’s position on the importance of the rights of young people with SEN and, in particular, with the aims of the SEN and disability Green Paper, Support and Aspiration, of March last year. I very much welcomed the Green Paper, which sought to develop a streamlined system for children from birth to the age of 25. I hope that this is an oversight rather than a deliberate move to exclude these young people with SEN from the scope of legal aid. Surely there is no justification for cutting this off at the age where young people might be transitioning from one educational institution to another, and when some young people with SEN continue to face barriers to getting the support that they need.
For young people with SEN and their families, the transition to adulthood can be a particularly difficult time as support from children’s services falls away and is often not replaced by support from adult services. As the Green Paper recognises, many young people who are disabled or who have SEN can face additional challenges during their teenage years. It states:
“Too often the opportunities and support available to disabled young people and young people with SEN fall short of what they need to make a successful transition to adult life”.
Those words come directly from the Green Paper.
I welcome the Government’s plans to extend support for young people with SEN up to the age of 25 through the proposed education, health and care plans in order to improve the support that young people receive during this difficult transition period. Cutting legal aid for this age group is inconsistent with the rest of government policy in this area. Therefore, I urge Ministers to accept this amendment to ensure that all young people with SEN remain, up to the age of 25, within the scope of legal aid. I beg to move.
My Lords, special educational needs is a particularly tortuous and difficult area of administration and, equally, for negotiation and representation. Young people with special educational needs are almost by definition ill equipped to represent themselves and to handle these difficult challenges on their own behalf. The system, at least in so far as children with special educational needs are concerned, provides very fully developed support, but there is something of a cliff edge beyond the period during which children are eligible for statements. While, admirably, the Government are seeking to improve the structure and quality of provision for special educational needs later on, it seems particularly unfortunate if, in this important area, they are to take away help for the very people they are otherwise seeking to improve their support for. Therefore, I hope that the Minister will find it possible to look sympathetically on the amendment in the name of the noble Lord, Lord Thomas, which was so well moved by the noble Lord, Lord Clement-Jones.
My Lords, I, too, support this amendment. My noble friend has exchanged correspondence with me on this matter. I support the points that have been made on the necessity to take into account the ability to obtain legal aid up to the age of 25, particularly for children with special needs. As my noble friend will be aware, the Young People’s Learning Agency, which took over from the Learning and Skills Council, has an obligation to meet the special needs of those who have not attained 25 years of age. Although the agency is being phased out, a general educational obligation will remain unless this Bill closes that gap. As my noble friend knows, if this is not dealt with, the alternative would be to bring cases under the Disability Discrimination Act, which is a very disruptive route for young people and their carers to have to go down. Therefore, I hope that this is just an anomaly and an oversight between two different government departments and that my noble friend will be able to reassure the House today.
My Lords, I rise to support Amendment 36 and to speak to Amendment 82ZA. The proposals arising from Amendment 36 are useful and we support them. In doing so, I declare an interest as a governor of a BESD school. Given my experience there, I echo the points made by the noble Lord, Lord Clement-Jones, about the need to support young people and their parents as they make the transition to adult life.
Our Amendment 82ZA is concerned primarily with the decision of the Government to remove all areas of education law from the scope of legal aid, with the exception of SEN provision, which we welcome but regret that it does not go far enough.
The Ministry of Justice consultation paper says that education cases cannot be accorded the same level of importance as those concerning an,
“immediate threat to life or safety, liberty”,
or protection against homelessness. Yet education is a basic human right and is one of the key children’s rights in the UN Convention on the Rights of the Child. We now know beyond doubt that without access to an appropriate education, children from poor backgrounds or with SEN are more likely than their peers to end up in the youth justice system and be significantly greater social and financial burdens to the state for the rest of their lives. It is therefore a false economy to cut proper assistance and representation across this sector.
The present spend from the legal aid budget on education cases is about £4 million per annum, and the estimated savings for their excision from scope are probably less than £1 million per annum. According to Legal Services Commission statistics, at least 92 per cent of education cases are successful, so there is obviously a real need here as well as high value for money.
As to the detailed points, we wish legal representation for SEN cases to be available for First-tier Tribunals and to ensure that specialist witnesses can be called at such hearings as well as just provide reports. In addition, our amendment would return into scope exclusions, admissions and bullying. Excluded children are at considerably greater risk than their peers of falling into the youth justice system. We should do what we can to ensure that such exclusions are necessary and appropriate sanctions. The Government appear to argue that school exclusions fall into a category of personal choice and that the child has always behaved in the manner alleged by the school or local authority. Surely every child has the right to be heard on such matters.
Removing access to legal aid for school admissions will have a disproportionate impact on particular groups of children, including refugee and asylum-seeking children. Many of these children find it difficult to secure school places, despite there being a clear statutory duty to provide suitable full-time education for all children of compulsory school age. We take the view that it is essential that legal aid is available to ensure that local authorities, and in future individual schools, meet their obligations and guarantee a suitable school place for all children.
Bullying is common in many schools across England. Research undertaken by Bullying UK in 2006, for instance, found that out of a sample of more than 2,000 parents, 87 per cent reported that their child had been bullied in the past 12 months, and 77 per cent reported that their child had been bullied more than five times. It is important that children and parents or carers have access to legal services at an early stage on legal avenues of redress for bullying. Bullying can cause many children to miss school for significant periods or to withdraw from attending school completely, and can lead to other negative social and health outcomes throughout a child’s life.
In her response to the Ministry of Justice consultation on the reform of legal aid, the Children’s Commissioner argues that many education clients achieve what they do for their children only with the help of legal aid. Whether it be support and therapies for their child's special educational needs, admission to a particular school, transport to and from school, or winning a battle for reinstated education after a period without it, legal aid-funded advice has often made a huge difference to their children’s life chances.
The Children's Commissioner goes on to say:
“The net result of these proposals would, in our view, remove the rights of access to justice by vulnerable and marginalised members of our society where no other alternative source of funding or route to resolution can be secured, and in circumstances where litigants’ ability to represent their own case has not properly been considered”.
She concludes with a point that I hope the Minister will respond to when the time comes. She states that:
“The proposed redefinition of scope for legal aid”,
to remove education other than SEN,
“appears to show a serious disregard for the rights of the child under both the UNCRC, and the recent guidelines adopted by the Council of Europe on child-friendly justice”.
My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme.
The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published.
Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly the Special Educational Consortium, that the current wording in paragraph 2 does not cover all SEN matters—in particular, learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. My noble friend and others made a very compelling case on that point. Although I have no reason to doubt the drafting skills of my noble friends, I hope that they will understand if I do not accept their amendment at this time. The focus on Section 140 of the 2000 Act would include Wales only. That might be because of the hand of my noble friend Lord Thomas of Gresford—that is no criticism—but I can assure the Committee that my officials are working closely with the Department for Education to ensure that the issue that noble Lords have raised is addressed and that the contents of paragraph 2 encompass all SEN matters. I assure noble Lords that the Government in principle accept the point and that we will table a technical amendment on Report to ensure that SEN matters are fully within the Bill’s scope.
The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews.
In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them.
Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal—currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children’s Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line.
Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such cases. Advice is also available on admission and exclusion matters, although I recognise that the organisations involved, such as the Advisory Centre for Education and the Children’s Legal Centre, face the same difficulties as others in the current financial climate.
The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement.
I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.
My Lords, I propose simply to respond on Amendment 36, so if those on the opposition Front Bench wish to respond on Amendment 82ZA, I shall briefly pause. I see that they do not.
First, I should have declared an interest as the president of Ambitious about Autism, the education and special needs charity for autistic children. I know that both it and the Special Educational Consortium will be delighted by the Minister's response. I thank the noble Lord, Lord Howarth, and the noble Baroness, Lady Browning, for their contributions. The noble Lord, Lord Howarth, used a very felicitous phrase, “something of a cliff edge”, about the 16-to-25 period. Of course, the experience of the noble Baroness, Lady Browning, in this area is enormous, and I particularly welcome her contribution.
I very much welcome the Minister’s response and the fact that he has recognised the compelling arguments that have been made to him and to the Department for Education not only for the phase up to 16 but for the 16 to 25 year-old phase. I recognise that the amendment might not be fully technically correct but it might cover other sections—Section 139A is a possibility—that may need to be covered in the drafting.
I think that many noble Lords around the Committee are hoping that this is but the first swallow of summer as we progress through the Bill, but I am very content with the response today and beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Amendments 36A and 36B not moved.
Amendments 37 and 38 had been withdrawn from the Marshalled List.
Amendments 39 to 41 not moved.
42: Schedule 1, page 120, line 11, at end insert—
“( ) Civil legal services provided to an adult (“B”) in relation to a court hearing in a matter arising out of a family relationship between B and another individual (“A”) where B has abused A or there is the risk of such abuse and where the court certifies that due to the probability of cross-examination of A there is a need for both parties to be represented at that hearing.”
My Lords, this is the first of a group of amendments relating to domestic violence. Some of them overlap and are repetitive but they all have the same desire at their core—that the Government should listen a little more carefully to the very real concerns of many people about the incidence of domestic violence and the fact that the Bill, if not improved, may do a lot of damage to extremely vulnerable people.
I have also put my name to Amendments 45, 46 and 48. Amendment 42 relates to a situation where a woman alleges domestic violence against a man and he is not represented. He will therefore be asking her questions about the abuse which she says he has perpetrated. If that abuse has occurred, it will be an extremely painful experience for her to undergo that questioning without the intervention of a lawyer. I well remember the Minister pointing out on Monday that judges are there to keep matters in order. I can only say to him that that is not entirely easy because there is a right of cross-examination and any defendant has a right to put his or—sometimes a woman is an abuser—her case to the person making the allegations. Therefore, as I know from experience, the judge’s ability to stop the sort of questions that will be asked will be quite limited. Some of those questions will have to be asked, but being questioned by the man who has committed the sometimes very serious domestic violence is in itself a form of abuse against the woman; as I said, occasionally a man is the victim.
I hope that the noble and learned Baroness, Lady Scotland, will be speaking to Amendments 45, 46 and 48, so I shall make only one or two brief points about them. I notice that Amendment 44 is very similar to Amendment 45, although our amendment is slightly broader. The definition of domestic violence currently proposed is, in my view and I think the view of many others, inadequate and requires to be much broader, particularly in relation to threatening behaviour and psychological behaviour. Some men drive their wives or their partners almost to suicide by never putting a finger on them; in many ways, psychological and threatening behaviour is even more dangerous and even more debilitating than the man who returns home drunk on Saturday night and knocks his wife around but who does not ill treat her from Sunday to Saturday. Psychological abuse is usually daily and nightly and, therefore, it requires a rather broader interpretation.
I ask the Minister to pay particular attention to Amendment 46. The proposals of the Government about what will be acceptable domestic violence in order to get legal aid are profoundly too narrow. There are so many situations. For example, no woman goes willingly to a refuge. I do not know whether the Minister has ever been to a refuge, but no one in their right senses would want to go there unless they were driven by real abuse from their partner. That is an absolute minimum. A woman who has been accepted in a refuge really should be treated as a victim of domestic violence. I hope that the noble and learned Baroness, Lady Scotland, will say more about these matters; they are of enormous importance and, so far, the Government have given an inadequate response to matters which I know they take seriously. However, if they do not give a sufficiently adequate response to these amendments, they will not be seen to be treating them sufficiently seriously. In relation to Amendment 42, I beg to move.
My Lords, I wish to speak to Amendments 43 and 44, to which I have attached my name, and to a part of the group which focuses on the question of domestic violence and the way in which the Bill approaches domestic violence.
The history of the justice system and domestic violence is not a very happy one. For many years, crimes within the home were hardly regarded as the business of the state; they were, in the rather grim phrase, “domestics”—issues to be sorted out as best as they could be between the parties. Of course, the problem was that the parties were very rarely equal. Children, who are often the most damaged victims, are the least equal of all. In all the years that I was a prosecutor, I saw the effects and consequences of that injustice. At its most brutal, I dealt with a startling number of women who had been murdered by their partners, and who had repeatedly been victims of persistent and escalating assault. In too many cases, those assaults had gone completely unpunished and undetected and they were allowed to escalate into killing. It would be difficult to imagine a worse failure of law enforcement policy.
When I was the DPP, the prosecution service and the police, notably aided and encouraged by the noble and learned Baroness, Lady Scotland, when she was a distinguished Attorney-General, spent a great deal of time on this issue, as she knows. We did research, we spoke to victims and to experts, and we educated ourselves, prosecutors and police officers. The most important lesson that we learnt was that the signals sent out by victims of domestic violence can be confused and difficult to read. Sometimes they have to be decoded and understanding that was the key to all the reforms that we undertook. Of course, people in these situations do not send out confusing signals or sometimes behave in ways that are, for us, counterintuitive because they are necessarily lying, but the complex human relationships that are in play do not always allow for a rational train of evidence, so the police and we as prosecutors had to think differently and imaginatively about this category of crime. The Government also have to do that.
At the most basic level, a woman who has been beaten up does not always come forward to make an official complaint, but the absence of a complaint is not evidence that a crime has not occurred. The British Crime Survey tells us that up to 25 per cent of women have experienced domestic violence, but the numbers coming forward are far below that: indeed, on the Bar Council's figures from another survey, only 16 per cent of victims of domestic violence come forward.
The truth is that an abused woman will not always report her assailant to the police. Often, she will not. If she does, she will not always support a prosecution. Often she will not; often she will return home to face more violence. No doubt sometimes she has children who want their father. Sometimes he is the breadwinner and she fears destitution without him. Sometimes she may simply continue to love him in some way that draws her back. As prosecutors, we learnt not to take the behaviour of victims of domestic abuse at face value. We learnt that we had to get beyond those responses if we were to get the assailant. That was the key: to get beyond the responses. The result was that prosecutions of domestic abusers rose dramatically, as did the rates of conviction. This was painstaking work and it would be a very great shame to see any of it undone.
Which of the lessons that we learnt have the drafters of the Bill learnt? The answer is: not enough of them. Frankly, in their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago. It is a matter of great regret that a Bill presented by the coalition Government of which my party is a member appears to step backwards in expecting victims of domestic violence to conform to a stereotype of conduct, so that they will not be believed, their gateway will be shut and they will not get legal aid. This risks condemning many victims of domestic violence to a future with little or no legal succour. It is a policy with which the Government should not be associated.
In essence, the Government have done the right thing in Schedule 1 by retaining legal aid in private family law cases where domestic violence is present, but have done the wrong thing by requiring categories of evidence to support the existence of domestic violence that are very commonly absent, such as a criminal conviction, a finding of court and so on. So often, the victims of this sort of conduct seek advice and help from sources other than the authorities.
I am certain that the points that I and other noble Lords made were carefully considered by the Government, who I hope will continue to consider the points. My point was that frequently victims of domestic violence seek support other than from the authorities, for obvious reasons; they seek it from doctors, support organisations, social services and the like. Material from these sources should be acceptable as evidence for the purposes of the legal aid gateway.
We can dress up the Government’s present scheme in any way we like, but the reality is that the legal aid budget will reduce as a direct result of the reluctance of many victims of intimate domestic violence to expose themselves and their children to the threat of more abuse by identifying and reporting their assailant to the authorities. That is unacceptable. Of course, we all hope that victims will come forward and seek protection for themselves and their children. It is important to give them every encouragement to do so. However, often they will not, and if they do not they should not be denied legal aid for that reason.
The Government's justification for the Bill's approach is, if anything, less attractive than its substance: namely, that we need a conviction or some other officially reported evidence of abuse in case women are tempted to make up allegations of assault in order to get legal aid. This is a rather depressing reinterpretation of the old stereotype of the woman who cries rape. Of course, women very occasionally invent allegations of rape but, in my experience both as a defence counsel and as chief prosecutor, these cases are exceedingly rare and very heavily outnumbered by cases in which the woman has been attacked. A vast and overwhelming number of women do not invent the attacks that have been visited on them. Domestic abuse is real and far too widespread, as I know the Secretary of State and the Minister realise and understand.
It is particularly difficult to understand why the definition of domestic violence in this Bill is different from and, on any analysis, narrower than the definition used by ACPO and the Crown Prosecution Service in detecting and prosecuting these crimes. I hope this is an accident. If it is, let the error be rectified at once. If it is not, let the Government think again. What possible justification can there be for this Bill to contain a definition of domestic violence that offers less protection to the victims of domestic violence than the definition used successfully day in and day out by our law enforcement agencies? If that is the reality, as I believe it is, this definition has no place in this Bill.
I accept that the legal aid budget must reduce. It is for this reason that I am able to support, as the Minister knows, many of the reforms proposed by the Government. Indeed, I have no problem at all with some of the more controversial proposals, including competitive tendering for criminal legal aid, although this does not make me very popular with many of my professional colleagues, but I have a major problem—
Can the noble Lord help me on one point? I think I understand well what psychological, physical, sexual or emotional abuse might consist of, but I find it very difficult to see what the adjective “financial” adds to a case where none of those elements is present.
One can imagine a category of abuse that is primarily financial. Of course, it could carry in its train some of the other features that the noble and learned Lord has alluded to, but it adds something to the definition of domestic violence. We all know that financial power is an important aspect of the power relationship that can exist between men and women, particularly, as he indicates, women who are being abused in other ways. My view is that the adjective “financial” is an important part of the realistic and modern definition of what can cause and amount to domestic violence.
I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay. We must have a system of legal aid that works properly to protect the victims of domestic abuse, understanding that it is money well spent. We must have a Bill with the modern definition of that crime and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument.
My Lords, I support these amendments. I will particularly refer to Amendment 46. It seems to me that sub-paragraphs (g) (j) and (k) are particularly important. They relate to the less formal types of evidence as opposed to court convictions and the like. These amendments have been eloquently and accurately spoken to by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Macdonald, and I do not want to add too much, apart from a couple of examples. Before I give them, I shall make a point of principle. From my experience as a legal practitioner, it is clear to me that the earlier legal aid is given for the earliest possible intervention, the least harm is likely to be done. I urge the Government to accept that as a very sound principle. I will now give my two illustrations that lead me to that principle.
On one occasion many years ago, when I still practised family law, I was asked to obtain an injunction for a lady from a small town in rural Wales. I was then practising in Chester, and the town in which she lived was about 50 miles west of Chester. She had been driven by various forms of abuse by her husband, some financial—the deprivation of money for daily expenditure for herself and the children, so she could not even buy the children shoes—some emotional and some physical, eventually to go to that daunting place, the local solicitor’s office on the high street. The great solicitor Mr Jones—and he really was called Mr Jones—decided to apply for an injunction, and I was instructed.
When she came to my chambers in Chester, she told me that this was an absolutely terrifying experience for her; she had never been to England before. We went and obtained the injunction in the judge’s domestic dining room. She left the occasion much mollified and placated by the friendliness of the law—not least because she had won. However, much worse consequences could have ensued if she had not finally had the courage to go to Mr Jones’s office. Over the years I have appeared for both the prosecution and the defence in murder cases where there had been clear domestic abuse but the steps which that lady took had not been taken and eventually distraction arose.
My second example is much worse and I am afraid it has haunted me for the past 30 years. After a great deal of domestic abuse, a wife was eventually driven to obtain orders from the local county court, again in west Wales, against her husband. On the face of it they were both extremely nice, professional people. They were able to pay for their own proceedings because they were local small-business people. So much heat had been generated during the period before proceedings were taken that not very long after the orders were obtained from the county court, unfortunately, the husband killed both the children in absolutely tragic circumstances that left scars on a whole community.
It seems to me that if legal aid were given for early interventions to take place, we could avoid not only those kinds of tragedies but the costs for other parts of the public service that ensue if legal aid is not made available. The consequences of late intervention can lead to mental health services being involved, and it is worth recording that if somebody ends up in privately run mental health services as an in-patient, albeit paid for by the NHS, it can cost as much as £150,000 per week—I repeat, per week—for that kind of intervention to take place. These figures are readily available. There can also be educational difficulties which hold back children for the whole of their lives. People can end up in prison, which is very cheap compared with mental health services: it costs a mere £40,000 per year for each prisoner, even if sentenced to short terms of imprisonment.
I say to my noble friend the Minister that the Government are cutting off their nose to spite their face with these provisions. There is absolutely no evidence of real savings being made, and the real social cost may be dramatic and very serious.
My Lords, it is a real privilege to follow the last three, very powerful, speeches in support of this series of amendments. For completeness, I declare my interest as the chair of the All-Party Group on Domestic and Sexual Violence, and founder and patron of both the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence.
I am particularly grateful to follow those three powerful speeches because your Lordships have had a taste of the different elements that participate in the criminal and civil justice process to bring relief and succour to victims of domestic violence. Those elements are the experience of the noble and learned Baroness, Lady Butler-Sloss, as a judge and previous president of the Family Division; the experience of the noble Lord, Lord Macdonald, in his sterling work dealing with these issues while he had the privilege of being our Director of Public Prosecutions; and, of course, the wealth of experience of the noble Lord, Lord Carlile.
I do not propose to reiterate everything that they have said about the nature of domestic violence but it is important for us to remember that it can affect one in four women in our country and one in six men, and that the secondary victims of domestic violence are the children in those families. Between 750,000 and 900,000 children in the United Kingdom are adversely affected by domestic violence. Tragically, we see them overrepresented in every indices of dysfunction, whether it is alcoholism, mental illness, criminality or lack of educational and physical milestones being met. The breadth of domestic violence has been well understood.
To say a word in response to a question about financial violence from the noble and learned Lord, Lord Scott of Foscote, regrettably—as the Minister will know from his own readings of this subject—financial violence can often be the tool used to restrict a woman and a victim’s movement, and to impose on them situations which cause them physical and emotional harm. Having no money, being controlled and being restricted can have a very deleterious effect.
What the noble Lords, Lord Macdonald and Lord Carlile, have said is correct about the way in which we have learnt about domestic violence. Over the past 30 years, the learning has come, regrettably, at the cost of listening to victims who have suffered from the mistakes that we made in the past; namely, our inability to understand or to respond in a holistic and joined-up way.
The work that has been done, not least in this House by Members and elsewhere, has enhanced our understanding and the definition in Amendment 45, which is tabled in my name, that of the noble and learned Baroness, Lady Butler-Sloss, the right reverend Prelate the Bishop of Leicester and the noble Lord, Lord Blair, is not innovative. It is the accepted definition of domestic violence used on a day-to-day basis by courts, prosecutors, advocates, third-party non-governmental organisations, individuals and elsewhere. The way in which that definition has been crafted has been influenced by the experience culled over a period of 30 years.
Before this Bill, there was never any suggestion that any amendment of that definition was immediately necessary to prevent people taking advantage of it in a way that was not proper. As the noble Lord, Lord Macdonald, has said, the real issue that has troubled many of us is how we persuade and enable those who are in need of the succour that can be provided to come forward, not how we stop them making false allegations. That problem has been alleviated but not expunged. We still have to encourage. Regrettably, 89 per cent of repeat victims of domestic violence happen to be women. One in six is a man. It is a lower level but they tend not to be repeat victims, so the problem remains.
The definition adopted by the Association of Chief Police Officers has served us well. I do not for a moment suggest that the Government are not committed to alleviating domestic violence. The fact that the Government have excluded domestic violence victims from the general legal aid ban on family law is important. I acknowledge that immediately and we should applaud it. I know that the Minister’s colleague in another place, Mr Djanogly, said in terms:
“If domestic violence is involved, the Government believe that legal aid should be provided”.—[Official Report, Commons, 31/10/11; col. 638.]
We say to the Minister today that, in order to fulfil that acknowledged commitment, the definition used in the Bill has to be changed and should reflect the accepted definition which has been used on a day-to-day basis by everyone. If it is not, we run the risk of excluding about 46 per cent of the domestic violence victims who are currently eligible for legal aid.
What the noble Lord, Lord Carlile, said was absolutely right: we need prevention and early intervention. We have been encouraging victims to come not when they reach the stage of being a high-risk victim on the multi -agency risk assessment Richter scale, because, quite frankly, that is sometimes almost too late. To satisfy that high-risk criterion, victims have to be at risk of death or grievous bodily harm. We have encouraged victims to seek appropriate intervention and relief at an early stage, when there is a punch, a kick or a push, and that has started to happen. We are winning on that. The Minister will know that, since 2003, when we jointly started to look at this issue in a more concentrated manner, we have reduced domestic violence according to all the figures by 64 per cent and have saved—I know how important is the economic cost at this moment of real austerity—£7.5 billion a year. That is a real saving and we in this country now know how to deliver it.
A key component of that early intervention and reduction in economic costs was, and always has been, the availability of legal aid for victims who need it. By intervening early, we have reduced the level of deaths. The noble Lord also knows that, if we are dealing with a murder investigation, it will cost the state at least £1 million from interdiction to conviction. If children are involved, we can be looking at £2 million per case. One has only to do very simple maths to work out that failure to give legal aid at a judicious moment will cost us far more in the long term than giving it early and allowing, quite often, the woman and her children to have appropriate protection, because the damage that is done to children can affect them for the rest of their lives.
So I strongly urge and invite the Minister to ask his right honourable friend the Lord Chancellor to think again. On Monday night, I know that the Minister waved his white flag. I would encourage him to wave it even more vigorously in relation to this issue, confident that he can return to his right honourable friend the Lord Chancellor and assure him that in so doing he will save lives and cost. If the Minister has any information that indicates that there will be an economic saving in costs, we would obviously be most grateful to hear on what basis those savings will be found.
Turning to the evidential base, I want to add a little to what has been said in support of Amendment 46. The Minister will recognise all the forms of evidence that are laid out there because those are the sources of evidence that the UK Border Agency currently uses. An applicant asking for an extension of stay or asking for the right to remain here will have to produce them if they wish to establish that domestic violence has been visited upon them. Noble Lords will know that since these provisions were introduced and applied by the UK Border Agency, no difficulty seems to have arisen in relation to misuse or abuse of them—both with the definition and with the sources of evidence. We know beyond peradventure that this works. Although I hear what his honourable friend in the other place says about wanting to restrict these sources of evidence in order to discourage those who would seek to make unmeritorious claims, I can certainly assure the Minister that no such unmeritorious claims seem to get through the sieve if you apply the sources of evidence that we have referred to in Amendment 46.
It is important to think about the reality of the damage that would be caused if these sources of evidence are not accepted. We should look at the average case, such as when a woman has run from her home. She manages to go to her GP, who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say. All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under these provisions the woman would not be entitled to legal aid. That cannot be right.
As the noble Lord, Lord Macdonald, has made clear, quite often women will stay for a long time in such circumstances. Recent research shows that on average a woman with children will stay for five and a half years in such a situation before she leaves. She may go to court and get an injunction or an order against the husband. He may be convicted of grievous bodily harm, sentenced to five years in prison, serve two and a half and come out. There is still a real risk to his wife and his children. The police may agree that he continues to present a risk to them. Under these provisions, because it would have been beyond the 12-month period, such a woman would not be entitled to legal aid. I know that cannot be what the Government wish to happen.
The injustice of these provisions is plain and I cannot believe it is intended. I do not wish to believe that the Government intended to turn the clock back not 15 years, as the noble Lord, Lord Macdonald suggests, but actually by 30 years. We started this work with the Matrimonial Causes Act 1973, and thereafter legal aid has been there throughout the whole period. I do not believe that this is the noble Lord’s intention or that of his noble and learned friend the Lord Chancellor. Therefore, I must believe it is because the Government do not understand. That is disappointing and sad, because I thought that both the Liberal Democrats and the Conservative Members had been with us and that all of us were on the same journey. If the Government have lost their way, I am glad to see there are many on the Liberal Democrat Benches—and I am sure there will be on the Tory Benches, too—who will help them out.
I also want to speak in support of the amendment spoken to by the noble and learned Baroness, Lady Butler-Sloss. She is right when she says that legal aid should be granted where cross-examination is conducted by the perpetrator of the abuse, so I ask the noble Lord to think again. There will be even more rejoicing—not just in this place but elsewhere—if the noble Lord can say in reply that, on mature reflection, the Government see the merit of not taking forward the provisions that they currently have in the Bill and that they would prefer to continue with the received and agreed joint wisdom that is apparent in the ACPO definition and in Amendment 46.
Before the noble and learned Baroness sits down, could she help me just a little? On Amendment 45, it does seem to me that relying upon a known, approved and accepted definition is clearly right. Of course I accept that, for all the very powerful reasons that have been given. However, since this was crafted, we have got a lot more experience in respect of other kinds of domestic abuse, in particular that of the elderly. We have become very aware recently of the danger to people in care homes but not quite aware enough of the possibility of domestic violence against the elderly as well. Although it is probably too late to bring this into the Bill, could she help me in pressing the Minister to respond as to whether, where it says at the end,
“regardless of gender or sexuality”,
we ought to assume “regardless of age, gender or sexuality”?
My Lords, that is right. We tend to think of familial violence as violence within a family group and people living together in partnership. Regrettably, the right reverend Prelate is right in saying that age does not prohibit violence—domestic violence is no respecter of persons, irrespective of age, ethnicity, economic background or any dividing issue one can think of. Regrettably, domestic violence affects everyone, and this definition, which has been used, continues to be efficacious and would include those issues.
I should also say that of course the Government themselves have been undertaking a review of domestic violence strategy. In part of that strategy, the definition is being considered and, from what I understand of the consultation, they are seeking to widen the net and not restrict it. That is why these provisions are so concerning and—I have to say—utterly surprising. If there was one area in which I did not believe that there would be any dissent at all among the parties or any of our Benches, it would have been this. So there is deep concern and surprise but also bitter disappointment that we are having this debate.
My Lords, the other evening I said that a smile always came to my face when the noble and learned Baroness reached the Dispatch Box. I think there is usually an exception, and that is when you are in the firing line from her formidable advocacy.
The noble and learned Baroness put her finger on it when she said that domestic violence has its impact on every index of dysfunction in our society. I think that we all accept and understand that. My noble friend Lord Macdonald made the point in acknowledging that the Government have from the very beginning, as the noble and learned Baroness said in quoting my honourable friend Jonathan Djanogly, intended to put domestic violence within scope.
This debate is about whether we have got the definition right. Obviously in discussing that, I have to take into account the comments of a former President of the Family Division, a former Director of Public Prosecutions, a former Attorney-General with considerable lateral experience as well in these matters, and even my noble friend Lord Carlile, who in this case is just an honest jobbing barrister. Obviously, if one gets that weight of evidence, we go back and look carefully at what has been said. I did not realise that this Government were so radical, as was suggested by the query of the noble Lord, Lord Clinton-Davis. Of course, I have talked to my noble friends and have tried in the course of the Bill to be available to Members on all sides of the House. However, as I said at an earlier stage, I am trying to use this Committee stage to listen and to take on board and match our aspirations for the Bill with the experience and wisdom that we receive in Committee to see whether there are areas in which we will make changes when we get to Report, or areas where we simply say to the House that we simply disagree. The spirit is one of listening.
I agree with the noble and learned Baroness that it should be a matter of cross-party co-operation to deal with this scourge of domestic violence. I visited Holloway Prison and was taken to see an ongoing programme of training and educational skills for girls. I went around talking to a number of them. The lady who showed me round suddenly said something that really chilled me. I said, “This seems to be working very well”. She said, “Yes, of course, but you know these girls are probably in the safest place that they have ever been in their lives”. So please do not think that our approach is either frivolous or without concern for the very real problems that domestic violence causes. Again, in a phrase that was used by my noble friend Lord Macdonald, it is certainly not our intention to roll back the decades of progress.
Let me deal with the amendments. Points have been made that might not be exactly the facts. For example, the noble and learned Baroness, Lady Scotland, gave the illustration of a man who has been imprisoned for violence for five years but comes out in two and a half. I am advised that the time limit will not apply to a conviction for an offence of violence against the application for legal aid, so if a woman's partner were convicted of such an offence against her and imprisoned, the conviction would be a qualifying form of evidence following a release, even if that were more than 12 months after conviction. There were many other points that people have made. Let me read the Hansard of how those points have been made and let noble Lords read the reply that I am giving. Then, as the noble and learned Baroness said, we can look at this issue, because I am not in the business of either rolling back decades of progress or ignoring a very real problem about that I know all Members of this House are deeply concerned about.
Amendment 42 would bring into scope legal aid for the perpetrator or alleged perpetrator of abuse if the courts certified that there was the possibility of cross-examination. I understand the concerns that the noble and learned Baroness is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that automatically extending funding to alleged perpetrators fits well into this, nor do we think that it is necessary. It would be a mistake to assume that the only means of protection for the prospective witness is to fund representation for the prospective questioner. I think that we had something of this debate the other night and I take the point that there are limits to what a judge can do. However, there are also powers which a judge has. I am not going to cross swords with the noble and learned Baroness about this, but I merely make that point.
The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have the power and the training to manage the situation and to make sure that the court’s process is not abused, and that hearings at which oral evidence is given are handled sensitively. For example, the court in family proceedings is specifically empowered to limit cross-examination and it can have questions relayed to the witness rather than asked directly, use video links or intervene to prevent inappropriate questioning. We recognise the importance of funding in a range of cases where the interests of victims of domestic abuse are paramount, and this is reflected in the final decisions that we have reached.
I turn to Amendments—
Before my noble friend moves on from that point, can he go a little further in answering the issue raised by the noble and learned Baroness, Lady Butler-Sloss, about cross-examination? Yes, of course the judge has power to limit inappropriate cross-examination, but the judge cannot prevent the person concerned putting their case, and putting it fully and properly. That is the issue that the noble and learned Baroness is trying to deal with. It is in that situation that the allegedly abused person faces real anguish, and in which the protection of the judge is but a very small instrument.
I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.
I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.
We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.
Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.
I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.
I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief—there is a part that deals with this.
Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph where it appears.
I want to know—“like most normal people”, I was going to say—why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules 2010. For its purposes, it defines domestic violence as,
“physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm”.
Was that not a case in which the Supreme Court was being asked to determine whether a specific aspect of emotional abuse was to be included so that someone could get relief and, in so doing, referring to that aspect rather than any other? Could the noble Lord tell the Committee to which case he is referring?
If I am misleading the Committee in any way in this exchange, I will of course write and correct it. The Supreme Court did not adopt the ACPO definition of domestic violence in the Yemshaw case. If the noble and learned Baroness questions me any more, she will go way above my pay grade in terms of the law.
Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man—give him the night off.
The definition should also be seen in the light of the Bill’s structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse—as defined in that paragraph—will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address.
The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government’s response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say “hear, hear” to that.
The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances—a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment is unnecessary. This could lead to the understandable question of why we do not simply adopt the ACPO definition, given its general recognition. However, the ACPO definition is not set in legislation anywhere and is therefore not permanent, as demonstrated by the recent consultation announced by the Home Office. It could change but legislation would not change with it, at least not without subsequent primary legislation.
The ACPO definition is operational in nature and purpose. Legislation serves a different intent in setting the framework for the way in which legal aid systems will operate and the definition is drafted to better fit this purpose. I reiterate that this does not mean that there are circumstances covered by the ACPO definition which are not covered by that in the Bill. Indeed, my colleague the honourable Member for Huntingdon, Jonathan Djanogly, issued an invitation during Report in the other place for Members to give any examples of cases that would be excluded by the Bill’s definition compared with that of ACPO. It might also be noted that in terms of the range of persons involved the ACPO definition is narrower than that in the Bill, the Bill’s definition being linked to that already used in the legislation governing family homes and domestic violence in Part IV of the Family Law Act 1996. I speak as a lay man. That is the explanation. That is why we did not move ACPO into the Bill en bloc. I ask noble Lords to study Hansard. If the explanation does not stand up, I invite the noble and learned Baroness and others to come back to me on that point between now and Report.
Before I move on I would like to address one other issue relating to these amendments which could be misleading. The reference to “any incident” might be read as securing legal aid for any person who could point to some sort of incident regardless of whether it was serious or minor, such that the victim would not genuinely feel inhibited in pursuing litigation against the other party. That would not reflect the underlying intention nor be the effect in practice if the regulation required certain forms of proof. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit the ability to present their case against the other party. The circumstances that will be accepted as evidence of abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria. Where the courts and others have determined that the abusive conduct is of a level that protective action or prosecution must be taken, legal aid will be available.
Amendments 46 and 43 would set out a range of forms of evidence that would be accepted as demonstrating domestic violence for the purpose of qualifying for legal aid in private family law cases. We want victims of domestic violence to have the benefit of legal aid in such cases where they will be disadvantaged by facing their abuser as the other party. It is important to remember that our proposal is that victims of domestic violence remain in scope of legal aid provisions. However, we heard many concerns during the consultation that this proposal could see a rise in unfounded allegations and we want to guard against that. Therefore, we need clear objective evidence of domestic violence in order to target taxpayers’ money on genuine cases where the victim needs assistance because of being intimidated or otherwise disadvantaged by the fact of facing the abuser in proceedings. The forms of evidence that will be accepted for this purpose are not set out on the face of the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary rather than primary legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.
We indicated the intended forms of evidence in consultation and listened to views expressed in response to that consultation about what should be accepted as evidence of domestic violence. As a result we have widened the range of forms of evidence. Only one of these forms of evidence will be needed, so legal aid will be available for victims of domestic violence in private family law where any one of these criteria is met: a non-molestation order; an occupation order; a forced marriage protection order or other protective injunction against the other party which is either in force or has been made in the past 12 months; if there is a criminal conviction for domestic violence committed by the other party against the applicant for funding unless the conviction is spent; if there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; if the applicant for funding has been referred to a multi-agency risk-assessment conference as a harassed victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; or there has been in the court a finding on fact of domestic violence by the other party, giving rise to the risk of harm to the victim.
I hesitate to interrupt the noble Lord but can he help me on a point about legal aid being withdrawn from private law cases? He will know that one of the main ways of there being a finding of fact is through those private law situations. If there is an impecunious litigant, can he help me as to how that litigant—normally a woman—is going to get those findings of fact if she does not have legal aid to do so? That is one issue.
Secondly, has the noble Lord seen or read the recent survey by Women’s Aid, Rights of Women and Welsh Women’s Aid that found that the majority of respondents did not report abuse the first time it occurred but typically did so after being assaulted between three and five times? Although 99 per cent had reported at least one incident to the police and/or the police had attended an incident, only 8.3 per cent would be able to prove that they had had an ongoing criminal proceeding in the previous 12 months. There seem to be a lot of practical difficulties and I wonder whether the noble Lord can help the Committee in relation to those matters.
The Welsh Women’s Aid report has been published very recently and we will look carefully at it. I should point out that the organisation surveyed women who are in receipt of domestic violence services rather than women who are seeking legal aid for private family matters. It is a distinction but it means that the survey may not fully square with the issues that we are looking it. We know that this latter group will often, for example, seek a domestic violence injunction at the same time as they take their private family law action, and thereby will qualify for legal aid. None the less, we will look closely at this matter and I will perhaps write to the noble and learned Baroness on her other point.
My Lords, I do not by any means want to harry the noble Lord but, given what he said about the need for flexibility and certainty, will he consider putting all the evidential issues into the schedule and providing us with an amendment we can look at? Perhaps we could have something such as an affirmative resolution in relation to these issues, which would give us flexibility—if that is what the Government think would be necessary—and clarity as to what evidence would acceptable. I am making a suggestion to the noble Lord that I will not necessarily be bound by, but I just want him to think about it.
I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose—although I hate using that phrase—in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness’s detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.
It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.
Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments referred to evidence from professionals in a variety of roles. We have widened our criteria, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party. Those referrals can be made by a range of professionals. Further, a finding of fact in the court that domestic violence has occurred will trigger legal aid and the court will be able to assess any relevant evidence.
Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again—for instance, if a second protective injunction is made—the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual’s right under the European Convention on Human Rights, in particular Article 6.
This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.
My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.
I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.
That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report. I assure the noble and learned Baroness that when I say that I shall be taking the matter away, I mean that I shall be taking it back to the Lord Chancellor.
I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition—in particular, by accepting the Minister’s invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.
The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister’s alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.
I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.
Amendment 42 withdrawn.
Amendments 43 and 44 not moved.
45: Schedule 1, page 120, leave out lines 42 to 45 and insert—
““abuse” means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional, and including acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;”
Amendment 45 not moved.
Amendment 46 not moved.
47: Schedule 1, page 121, line 47, at end insert—
“( ) Civil legal services provided to an individual who has, or it is alleged will, put the child at risk of abuse in relation to a court hearing in a matter in relation to the orders and procedures set out in sub-paragraph (1), and where the court certifies that due to the probability of cross-examination there is a need for them to be represented in that hearing.”
This is another aspect of a situation in which the possible perpetrator, unrepresented, cross-examines a witness. The Minister said in respect of an adult victim of domestic violence that they would not necessarily be the most vulnerable of the people who come before the courts. The amendment relates to the most vulnerable because it relates to the pretty unusual, but not absolutely exceptional, situation in which a child has made allegations against the father not in a public law case but in a private law case. Norgrove, in the family justice review, underlines the fact that a proportion of abuse cases come through the private law sector. In that sort of case, the father has the right—it could be the mother, although generally it is the father—to cross-examine the child if the child is making the allegations and comes to court. If the father cross-examines the child about the abuse that the child has said he or she has suffered at the hands of the father, that is a further form of abuse of a really appalling kind. It would be rare and there would be very little expense. It would happen only where the judge said that the child has to give evidence—in most cases children do not give evidence—and only where the father wanted to ask the child questions.
Again, the father or the mother who is accused of abuse has the right to put the case to the child that it is not true. This can be done by a lawyer. It is upsetting for a child, but it can be done with a considerable degree of discretion. It is done very regularly in the criminal courts by barristers and solicitors, many of whom have had training in how to ask questions. What on earth would the Minister think of an eight or nine year-old who is able to explain very clearly what has happened to him or her being cross-examined by the father about the intimate allegations of how the father has behaved? I beg to move.
I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or she thinks it appropriate, to invite legal representation for that part of the case, and there being legal aid available for the judge to so invite, may be extremely important. It is very unlikely that this avenue would be used very often, but I respectfully suggest that it would be important, in support of what the noble and learned Baroness, Lady Butler-Sloss, says, for that opportunity to be available for the better protection of the child, whose best interests would in those circumstances of course be paramount.
My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.
I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.
I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.
Amendment 47 withdrawn.
Amendments 48 to 52 not moved.
53: Schedule 1, page 125, line 31, at end insert—
“Best interests of patients16A Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment.
Exclusions16B Paragraph 16A is subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions16C For the purposes of this paragraph “medical treatment” has the same meaning as in the Mental Health Act 1983.”
My Lords, the amendment was suggested by the Bar Council to put a particular issue into scope. It refers to:
“Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment”.
It arises out of a case called Re M, which was heard very recently by Mr Justice Baker. It was a case where someone was in a vegetative state, or the equivalent, and the family made application for the withholding of artificial nutrition and hydration from the person concerned. It was one of those terrible cases that one hears about from time to time. The judge made this particular series of observations, which I draw to your Lordships’ attention, in the course of his judgment. He quite deliberately set out observations for future cases. In paragraph 260, he said,
“given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant … the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the “playing field” was level because of the exceptional generosity of the Applicant’s lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family’s rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration”.
Your Lordships will appreciate that these cases unhappily happen from time to time, and when they happen, they exercise the family members, the practitioners and the judge to a very considerable degree. Each case has to be very carefully examined. In this case, the judge refused the application and said that the life of the individual concerned should be allowed to continue. The Bar Council’s proposed amendment would ensure that these cases come within the scope of legal aid, and I invite the Government to make an exception in these rare, but extremely expensive, cases.
My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.
Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.
My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.
There is another set of circumstances in which the noble Lord’s amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.
Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:
“Can I be treated without giving consent to the treatment?”.
It goes on to say that,
“if … you have the mental capacity … you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening”—
this is the crucial point—
“seek independent legal advice and consider making a complaint”.
It suggests discussing concerns with a general practitioner and so on, and goes on to say:
“If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian … may be able to consent on your behalf”.
Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.
Perhaps I may briefly intervene, having been frightened off by the fact that no one else, other than lawyers, has dared to speak this afternoon—it is just the Minister and I who share this disadvantage, disability or whatever it is. On a number of occasions I have declared an interest as chair of a mental health trust, which is no longer the case because it merged with another one on New Year’s Day. I am now fancy-free as far as the NHS is concerned for the first time in about 15 years.
However, it means that I know a certain amount about this issue. It occurred to me, too, that mental capacity issues appear to be covered by this amendment. It would be very helpful if the noble Lord, Lord Thomas, could tell us whether he intended that. It would also be helpful if the Minister could tell us whether his interpretation is the same as that of noble Lords on the opposition Front Bench; namely, whether this proposal would provide additional protection or access to legal aid for the relatives of someone who has been ordered to have treatment which they think is wrong, and which the subject of the treatment cannot challenge for mental capacity reasons, but where there should be some right to raise a challenge to the professionals.
I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the gratitude that they would wish no doubt to convey to him on this aspect of his very long and very distinguished public service.
My Lords, on the treatment issues raised by the noble Lord, Lord Beecham, and others, I am advised that the Bill covers them. The matters covered by the Mental Health Act 1983 and the Mental Capacity Act 2005 are covered in paragraph 5 of Part 1 of Schedule 1, which includes treatment issues. Amendment 53 seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. The amendment is unnecessary.
As I have explained, paragraph 5 of Part 1 of Schedule 1 already provides for legal aid to be available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the Mental Health Tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, including psychological treatment, life, liberty, physical safety, capacity to marry or enter into civil partnerships, capacity to enter into sexual relations, or the right to family life.
Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on mental health or capacity issues concerning medical treatment. Furthermore, public law challenges to the lawfulness of public authority actions could be brought by way of judicial review, which is in scope under paragraph 17 of Part 1 of Schedule 1. We believe therefore that this amendment is unnecessary and I hope that my noble friend will agree to withdraw it.
I am advised that in the particular case to which he referred the issue was the eligibility of the family for legal aid, because of their means. We have continued to emphasise that legal aid is means-tested in these circumstances and that our intention is to focus it on those who are most needy. I hope that, with those references and that explanation, my noble friend will agree to withdraw his amendment.
I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Beecham, for their contribution to this discussion and thank the Minister for his reply. Do I take it that he is saying that these cases are covered subject only to the means test? I see him acknowledging that that is the case. I would like him to consider before Report whether in cases of such tragedy as this a means test should be applied at all. Is it appropriate that a person should fail to receive legal assistance except pro bono, as happened in the Re M case, because of their means? I hope that I will be able to discuss that issue and perhaps clarify the purpose of the amendment with the Minister between now and Report. For the moment, I seek leave to withdraw the amendment.
Amendment 53 withdrawn.
54: Schedule 1, page 125, line 38, leave out “paragraph 15” and insert “paragraphs 1 to 5, 8 and 15”
My Lords, the amendment stands in my name and that of other noble Lords. I should make it clear that I shall speak specifically to Amendment 54 and not to the other amendments in this group, which I shall leave to others. Amendment 54 relates to paragraph 17 of Schedule 1 and deals with judicial review. This is an amendment on which the background work has been done by the Bar Council. I should declare an interest as an elected member of the Bar Council—despite that, I agree with it concerning this amendment.
I welcome the Government’s proposal generally to retain public funding for judicial review claims. Judicial review claims are an important part of the rule of law. They are all subject to an important qualification, which is the requirement to obtain the permission of the court for the claim to be pursued. That is not a light procedure. Your Lordships should know that when an application is made for permission for judicial review it goes through quite rigorous stages. The first stage is for the papers to be placed before a High Court judge or a deputy High Court judge—I do from time to time carry out the latter function in judicial review—where they are considered in full. In the great majority of cases, probably in about 95 per cent or possibly more, permission to apply for judicial review is refused at the papers stage. So the permission stage is quite a formidable hurdle. If permission for judicial review is refused, the matter can go for an oral hearing and there are stages thereafter. So this is quite a difficult procedure for potential claimants. It is not easy to be able to bring a case for judicial review.
However, paragraph 17 as drafted causes a difficulty which I and others are anxious to resolve and which may have arisen through inadvertence in drafting. Some of the most important judicial review cases brought in recent years have concerned the way in which public bodies have acted in relation to events giving rise to, or in the aftermath of, death or serious injury. Many of those cases have enjoyed or suffered a large amount of publicity and, indeed, debates in this House and another place. Other significant cases have concerned the exercising of powers enabling a body to seize goods or to enter land—again, a considerable intrusion with the rights of citizens on the face of it. The grounds on which the courts may grant remedies in judicial review are a signal of the excellence of our legal system. I see the noble and learned Lord, Lord Woolf, in his place and he has more experience than most, both at the Bar and on the Bench, in seeing judicial review developing the law in a way that I hope he would agree has become the envy of the world. The public body concerned in judicial review cases is either a statutory body that is alleged to have acted beyond or contrary to its powers, or a Minister or other Crown body exercising some statutory function, or occasionally other bodies that are like public bodies.
The Bar Council and I are concerned that the current drafting of Schedule 1 fails to make it clear that the relationship between paragraph 17 and the exclusions in Part 2 of Schedule 1 leave a fair and level playing field. A number of the exclusions in Part 2, including paragraph 8, which refers to “breach of statutory duty”, could on the face of it remove the scope of legal aid from a wide range of claims for judicial review. The following are examples that may be excluded. A challenge to a decision by a public authority to demolish private property, for example as part of a planning procedure, would be excluded, as would a judicial review to enforce the performance of a statutory duty such as housing a homeless child under the Children Act—I can tell the Committee that such applications are very frequent leave claims, at least permission claims in judicial review. A challenge to a hospital that refused to provide emergency life-saving treatment would be excluded—such claims sometimes arise in relation to elderly people or even in relation to people to whom treatment is denied because, for example, of a history of smoking. Also excluded would be a judicial review into a decision not to hold an inquiry into the violent killing of a young offender. Those are all examples of cases of real importance.
I hope that the Minister will say either that the intention is not to exclude any of those categories, as a statement to that effect would be of great utility in the event of ambiguity being perceived by the courts in such matters, or that he will say, preferably, that as there may be some ambiguity, the Government wish to clarify the matter by producing their own amendment for Report so that there is no lack of clarity or ambiguity. The simple way of doing that would be to remove any doubt by disapplying the exclusions in paragraphs 1 to 5 and 8 of Part 2. This is an important matter. I do not propose at this stage to spend more time on it because I hope that we will hear a helpful response from my noble and learned friend. I beg to move.
My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably.
However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not ever going to get a full hearing in any event. Attempts have been made to curb this, and it is a provision now that only certified people can give immigration advice and representation. It is regulated so that only solicitors, barristers, legal executives and those in a scheme run by the Office of the Immigration Services Commissioner are permitted to give immigration advice and representation in the course of a business. A voluntary agency or charity cannot unless it complies with certain requirements of the Immigration Services Commissioner. Despite all that, these claims are still brought. Some 70 to 80 per cent of immigration judicial review applications are not brought with legal aid, because in order to get legal aid at all there is a merits test, which the particular application has to pass before a solicitor is entitled to take the case forward.
The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because:
“These proceedings … represent a crucial way of ensuring that state power is exercised responsibly”.
In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that:
“The current criteria governing the granting of legal aid in individual cases would generally preclude such funding”.
So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way.
Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications—whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal. The immigration-specific exclusions relating to judicial review effectively ensure that those affected cannot have any legal aid at any stage of the immigration process. As I have already said to your Lordships, immigration is a problem, and it is brought forward in unmeritorious cases, generally without legal aid backing it. But now not even in the meritorious cases will legal aid be granted.
Amendment 56 has the purpose of retaining legal aid for an immigration judicial review when there has been no previous appeal. Sub-paragraph (6)(a) excludes legal aid for a subsequent judicial review of removal directions if a decision to remove has been made. The Government have suggested that any challenge to the earlier decision to remove can be dealt with on appeal, but a decision to remove does not of itself entitle a person to appeal before he or she has left or been removed from the United Kingdom. Therefore, on the Government’s own analysis, a decision to remove ought not to be a trigger for excluding legal aid for any judicial review application because it does not provide an opportunity for any oral hearing before a tribunal judge prior to the proposed removal.
Amendment 57 deals with a defect in the Bill. Sub-paragraph (6)(b) refers to decisions to refuse leave to appeal at a stage where such decisions cannot be made at the point of appeal to the First-tier Tribunal. Appeals at this stage are brought as of right; there are no leave-to-appeal decisions, so sub-paragraph (6)(b) is defective and should be removed.
Finally, Amendment 58 would align the preservation of legal aid for judicial review in connection with refusals of asylum with the scope of asylum as provided at paragraph 26(1) of the schedule. The Bill currently preserves legal aid in relation to fresh asylum applications but only in so far as the EU procedures directive applies. This is potentially problematic because that directive refers to an application for asylum as,
“a request for international protection … under the Geneva Convention”.
Other EU directives and UK domestic law treat other applications as applications for protection where the refugee convention may not strictly apply but the level of harm, such as torture or execution, which the individual faces is no less. In 2010, the UK Border Agency made 3,488 initial decisions to grant asylum under the refugee convention, compared with 91 grants on non-refugee convention grounds. While the cases where the distinction is critical are few, the exclusive reference in the sub-paragraph to the EU procedures directive is likely to cause confusion and litigation. The directives should be read altogether as one body of law and the relevant protection in relation to fresh asylum applications should not be limited to refugee convention applications. The seriousness of the cases involved is indistinguishable. By aligning the provision in sub-paragraph (7) with paragraph 26(1), that distinction will be closed, and it would better meet the Government’s stated intention to prioritise asylum, to avoid the potentially complex and expensive litigation and avoid the bureaucracy that likely will be required to operate the exceptional cases scheme. Given that the affected cases are relatively few, there is little financially to be gained by the Government from retaining the distinction between cases brought under the convention and those not under the convention.
As I said to the noble Lord, Lord McNally, we are here to help, and we believe that these amendments would improve the structure of the Bill.
My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments.
I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well.
We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers—and here I have no doubt that it was experienced and leading counsel—told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test.
It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be,
“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.
Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state.
Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law is a huge advantage to our law and very much respected around the world, but surely the answer for those who have suffered in that way is not to punish them for the bad decision-making that has been made by the state. There have of course been problems with judicial reviews being used as a weapon by some people—letter before action, in particular. However, as has been stated, the tests are very rigorous and do not permit vexatious or tendentious proceedings. They effectively act to safeguard the public purse, and we have heard no arguments at all to suggest that there has somehow been a failure of the system in the areas that are being taken out of scope of judicial review. It is really incumbent on the Government to show that there has been a failure of the system before taking these cases out of scope.
The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system:
“We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures”.—[Official Report, Commons, 31/10/11; col. 650.]
In his response in writing, however, he said:
“We do not keep these specific figures”.
I raise that not to make some petty point but only to invite the Minister—who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly—to please go back and double-check whether there are any of those figures.
I cannot resist asking the noble Lord whether he would also class as a failure of the system the fact that more and more legal aid practitioners in immigration and asylum have withdrawn from the scheme altogether, because they tend to be concentrated in city centres and the current rates of remuneration for this work are such that they are simply not sustainable? As I say, I could not resist adding that to his catalogue.
I cannot blame the noble Lord for asking an-ex Legal Aid Minister that question. In immigration law over the last 20 years or so—this has been hinted at already in contributions, and no one really can gainsay it—it was spotted that there were those who practised immigration law who did not do their profession any credit. Perhaps I might put it as cautiously as that; it is probably a good deal worse, frankly. The previous Government, with general support, therefore took steps, as the noble Lord, Lord Thomas of Gresford, reminded us, to make sure that the industry, as it were, became regulated. Thank goodness for that, but the rewards to be gained from doing legal aid work properly in this field are not very great. I have to concede that.
Will the Minister please double-check in the Ministry of Justice, which I know is not his department, whether any figures can be employed for the Government’s case for taking these parts of judicial review out of scope? As the noble Lord, Lord Thomas of Gresford, pointed out with some force, there was no consultation on this point, nor was there any comment in the Government's response to consultation—presumably because it was never referred to in the first place. We believe that judicial review is an important safeguard. Obviously the Government believe that too. That is why we support these amendments, because we want to know why the Government intend to take this part of judicial review out of scope.
My Lords, we have come to an important part of Schedule 1, relating generally to immigration, asylum, removal directions and judicial review, although the amendment moved by my noble friend Lord Carlile of Berriew was of much more general application to judicial review, which is an important part of our legal system, as he very clearly and eloquently set out. Amendment 54 seeks to disapply certain exclusions set out in Part 2 of the Bill for judicial review claims. It would appear to be aimed at ensuring that funding for judicial review is available for judicial reviews concerning, for example, breaches of statutory duty.
Our position is that we believe the amendment largely to be unnecessary, because the exclusions at paragraphs 1, 2, 3, 4, 5 and 8 of Part 2 of Schedule 1 are not intended to prevent funding for judicial review. Rather, the exclusions are intended to prevent the funding of, for example, tortious causes of action, typically for damages. While I hope that that would reassure, perhaps I can follow it by making it clear that our intention is to retain legal aid for most judicial review claims, including those relating to personal injury or death and breach of a statutory duty. I assure the Committee, and indeed my noble friend, that because we have obviously had representations on this point, we are actively and seriously considering whether in the light of this amendment and the points which my noble friend has made in moving it, we need to bring forward amendments of our own to clarify the position and to give proper effect to the intention.
I am most grateful to my noble and learned friend. He has been extremely helpful. Can he clarify one point? Sometimes when judicial review claims are brought there is included in the claim a claim for damages, which can be awarded under judicial review. I take it from what he said that if a claim for damages is part of a judicial review, that part of the claim would also have legal aid available to it. It is one legal aid order.
This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.
My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration judicial reviews. Before I turn to the specific amendments, it might be helpful if I briefly remind the Committee of the Government’s reasoning on this matter. My noble friend raised the question of the lack of consultation—as did the noble Lord, Lord Bach, who I am delighted to engage with again at the Dispatch Box. I think that the last time we did so was in the debate on the fixed-term Parliaments legislation. It has been six months but seems like a year.
My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges’ Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government’s view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.
The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.
The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute—sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions—if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual’s circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.
We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two relatively limited types of judicial review, and even these provisions are subject to the exceptions that I have outlined.
On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.
Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.
It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.
Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the “leave to appeal” in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.
The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases—that is, non-refugee convention cases.
The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.
Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward—sufficiently new that the court or tribunal is considering a different issue—they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.
The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.
I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.
Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.
My Lords, in relation to Amendment 54, I am grateful for the explicit support from the noble Lord, Lord Bach, on the opposition Front Bench. So far as my noble and learned friend’s response is concerned, as he spoke, I reminded myself that when I was a young man and he was a very young man, we shared a flat for a period within the Division Bell area. When you have shared a kitchen with someone, albeit one in which the most used utensil was the corkscrew, you get to know who you can trust. I entirely trust my noble and learned friend and always have done. I am extremely grateful for his assurances; he answered very fully the concerns that I and the Bar Council felt about this issue. I look forward to returning to the matter on Report, with those assurances intact and enhanced. In the circumstances, I beg leave to withdraw the amendment.
Amendment 54 withdrawn.
Amendments 55 to 59 not moved.
60: Schedule 1, page 127, line 33, after “deliberate” insert “, unlawful”
My Lords, the purpose of Amendments 60 and 61 is to ask the Government to rectify an omission that denies legal aid to those who have been unlawfully deprived of their liberty by the state and their ability to obtain redress through the courts.
The Government’s consultation resulted in legal aid being denied except for cases that concern a significant breach of human rights—abuses of positions of power or claims arising from allegations of sexual abuse or attack. Abuse of power by a public authority—which is itself a position of power—is defined in paragraph 19 of Schedule 1 as an act or omission that is deliberate or dishonest and results in reasonably foreseeable harm to a person or property. Unfortunately, however, the extent of the meaning of the words “deliberate” and “harm” in the Bill is not defined. Unless it is, I fear that based on past experience, immigration authorities and police will continue to disregard unlawful or false imprisonment on the grounds that “deliberate” means something more than merely unlawful, and “harm” means injury.
Let me give an example of what I mean. A British man spent 19 months in an immigration detention centre pleading with the Home Office that he was British, but lacking the documents to prove it. His deportation appeal, for which he was unable to obtain representation due to the cuts in immigration legal aid, was dismissed. However, a solicitor gave him the benefit of the doubt and wrote to the Home Office saying that the onus was on it, as the detainer, to prove that the man was not British. Within two days of the letter, he was released. At this point, under the new proposals, no further legal aid would have been available because on the face of it, no harm—other than the loss of personal liberty for a period—had been caused by an inadvertent and honest mistake. However, after many hours of legal aid-funded work, evidence emerged of prolonged deceit on the part of the Home Office, resulting in substantial damages having to be paid.
Because bringing claims for unlawful deprivation of liberty under a conditional fee agreement is beyond most people’s means now that legal expenses insurance premiums are no longer recoverable, most individuals placed in this situation have no means of gaining redress unless granted access to legal aid. Therefore, I am tabling both Amendment 60, which aims to make it clear that unlawful deprivation of an individual’s liberty by the state is a serious abuse of power, and Amendment 61, which aims to make it clear that unlawful loss of liberty constitutes harm, in the hope that the Government will accept that there is justification for the provision of legal aid in such cases of abuse of power by the state. I beg to move.
My Lords, I shall speak to Amendment 61ZA, which is in this group. It does not much relate to the amendments of the noble Lord, Lord Ramsbotham, but it raises an interesting issue to explore at this stage. It would include the Duchy of Cornwall or the Crown Estate as a public body under paragraph 19 of Schedule 1, to allow for those who believe that these organisations have abused their positions of power. My reason for tabling this amendment is the continuing uncertainty over the status of these bodies, which can be summed up by saying, “Are they private or are they public?”. Are they accountable to Parliament and how do Ministers take into account the issues raised by them, including the numerous handwritten letters that they reportedly receive from Prince Charles, which must always remain confidential? There is a complete lack of transparency.
My attention was drawn to this because of a recent case before the First-tier Tribunal of the General Regulatory Chamber on information rights between someone called Michael Bruton and the Information Commissioner and the Duchy over allegations that the Duchy allowed an oyster-growing grid to be deposited in the Helford river in Cornwall—in what was reported to have been an SSSI—without carrying out the necessary environmental assessments. The question then arose of whether the Duchy is covered by the Environmental Information Regulations, and hinges on whether it is a public body. The Duchy’s counsel said that,
“the Duchy is not democratically accountable in any meaningful sense”.
I find that rather an extraordinary statement. We can debate what it means, but the tribunal’s decision hinged on the definition of a public body. The tribunal found that the Duchy was a public body under the Environmental Information Regulations. Its judgment hinged on the fact that the Duchy is the harbour authority for the port of St Mary’s in the Scilly Isles. The Duchy has appealed so we do not yet know the result.
It is interesting because, at the same time, I have a Private Member’s Bill that is going through your Lordships’ House rather slowly. I was told by the Clerks that I would have to ask the Minister to write to the Duchy to ask permission for the Bill to be taken forward because it affects the private interests of Prince Charles. Clearly, in this House it is believed that having an interest in a harbour is a private interest, whereas the information tribunal thinks that it is a public interest. There are around 120 harbour authorities in this country. I had to ask why the Minister had to write to just one and not the other 119 but that is probably something of an aside. There is a lot of uncertainty there. I do not know how Mr Bruton is funding the appeal or the original work but he certainly did not get legal aid. Perhaps that should have been considered.
I turn quickly to the Crown Estate. Noble Lords will be aware that the Treasury Sub-Committee in the House of Commons investigated the workings of the Crown Estate. Its report was the first for around 20 years and it was clearly frightened by some of the issues that came back. It is interesting that the Government have recently changed the method of funding the public activities of Her Majesty by going back to pre-George III times and agreeing to give 15 per cent of Crown Estate revenue. However, they cannot tell what the future revenue of the Crown Estate will be because there could be very large revenue from North Sea oil and all the wind farms that are being built. Until now, that revenue has gone to the Treasury. We do not know what will happen in the future but I fear that there will be a lot of uncertainty about this. It is still not clear how one can ask questions about the activities and financing of the Crown Estate. Is it a public or a private body?
This uncertainty, coupled with the fear of some people and the unwillingness of the Government to subject the Duchy and the Crown Estate as public bodies—if that is what they are—to proper scrutiny, is a major hurdle for anyone willing to take them on in the courts. That is probably what is intended but it is unfair. It seems that these bodies decide whether they are public or private as it suits them in particular cases, which is all wrong. Therefore, there is very little precedent and, no doubt, much higher costs for any appellant. I will be very interested to hear what the Minister has to say about this. Does he believe that it would be equitable for legal aid to be available in such cases? Alternatively, or additionally, will the Government set up a review of what is private and what is public in these cases to produce some clarification and transparency, so that everyone who has to deal with these organisations knows where they stand?
My Lords, I shall speak in favour of Amendment 60, for which the noble Lord, Lord Ramsbotham, has made a strong case. I expect the Minister may say that, ipso facto, an abuse of power is unlawful. The problem is that if that is the argument, the way that sub-paragraph (6) is drafted apparently provides a complete definition of the phrase “abuse of power” in the context of paragraph 19, and the totality of that definition is in sub-paragraph (6)(a) and (b). It seems necessary to include the word “unlawful” although, as I say, it seems manifestly obvious that any public authority acting unlawfully is, by definition, abusing its power.
I would also be grateful if the Minister could tell us whether the word “deliberate” here means the same as “intentional”. I rather assume that it does, but some explanation is needed of why the normal terms—“intentional” or “with intent”—have been changed in this instance to “deliberate”. Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional? I hope that the noble Lord will refer to those points when he sums up. As I say, I am happy to support this amendment.
I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on the part of the citizen. Therefore, the amendment of the noble Lord, Lord Ramsbotham, would repair an omission in the drafting. Otherwise, it would be possible under the Bill as drafted for the public authority to say, “We did not realise. We did not mean to do this. It was not intentional. It was not done knowingly”. Or it could tell lies, but it will be caught that way. If the public authority said that it was sorry and that it had made a mistake of law, it certainly seems to me that the citizen ought to be entitled to some redress.
Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.
My Lords, I, too, commend this amendment for very serious attention. In the economic pressures under which we are operating and which are very much a factor in everything we are considering under this legislation, it seems to me that this provision is another example of a heavy penalty falling on the most vulnerable and those in the worst possible psychological situation. Sometimes we need to break away from our legal preoccupations and think of the predicament of the individual. They go through an extraordinary nightmare in many of the circumstances that we are discussing. We are discussing an authority of the state doing something which is a denial of everything that the state says it is about. In our immigration and other policy, we expect people to give undertakings and to prove that they understand the culture of our society and why it matters. Here is a provision which is an absolute denial of what this country is about—the deprivation of liberty. I would have thought that if we realised such a thing had happened, we would fall over backwards to put it right and to give a positive indication of our disapproval of what had happened and our sympathy for the individual concerned.
I hope that I may be allowed to make a wider point. I sometimes think that in our preoccupation with specific legislation we fail to make connections. All the time we are worried about stability, terrorism and the appeal of extremists. However, this kind of thing plays into the hands of agitators who portray these issues as examples of the hypocrisy of our society. It is hypocritical for an agent of the state to do something that is a denial of what the state is about and for the state to give no assistance in making sure that the wrong is put right. A terribly important principle has been raised in this amendment.
My Lords, my name is attached to Amendments 60 and 61 which were spoken to by my noble friend Lord Ramsbotham. Having listened to the contributions that have been made, it is clear that the whole area needs rewriting. The noble Lord, Lord Phillips, queried the various phrases that are used. Not to hold public bodies to account when they have behaved unlawfully is something which a country that prides itself on decent behaviour should not allow.
My Lords, I am not sure whether this is the appropriate amendment, but having had some experience of immigration and immigration detention I just wanted to make one point. I know that we are coming on to issues related to that. I declare an interest as a patron of visitors to Haslar detention centre in Portsmouth.
Like others, I understand that the protection of liberty is one of the primary factors in the allocation of legal aid. Yet the advice I have received is that this Bill will fall heavily on the most vulnerable people in our society—asylum seekers and those in detention who are awaiting removal to their home country. In many cases, it will mean that a vulnerable person, perhaps a victim of torture and perhaps as young as 16, will be unable to present their case without access to any formal representation and whose legitimate cries for help under international asylum law will simply be unheard. Applications for bail will be refused even more often than they are today simply because of the lack of legal aid and proper representation, if I have understood the situation right.
I well understand that the Minister has to defend the Government’s position in difficult times but I would like some reassurance that the test of vulnerability under this legislation will be reasonable. Perhaps he could explain how it will conform with international human rights law.
My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.
I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.
I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.
We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of the Bill, and in this context the loss of liberty must certainly be included. I trust that that is acceptable to the Minister. Frankly, it would be absurd if that were not the case. There is a question in my mind, and perhaps those of other noble Lords, about the precise meaning of “deliberate” in this context. Does that refer to the act of omission or commission—the substantive act—or to the fact that the consequences which are complained of were intended all along or ignored in a negligent way? It seems to me and to other noble Lords who have spoken that this amendment deals very adequately with those matters, and should be accepted.
The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what “deliberate” or “harm” mean. It expresses concern that the ministry will seek to interpret “deliberate” as more than unlawful, and “harm” as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.
However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained—for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.
Amendment 90ZZA refers to a rather different set of circumstances—in fact, an entirely different set of circumstances—that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert “mental or psychological” harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,
“Advocacy in the proceedings in the Court of Protection”.
At the moment, legal aid would be limited to,
“a person’s right to life … a person’s liberty or physical safety”,
and some other matters. However, physical safety is not by any means the be-all and end-all, and there are clearly cases where people might be subjected to psychological or emotional harm and may require legal assistance. One can think of people with learning disabilities being abused or taunted, generally suffering as a result of the actions of others, and needing the protection of the Court of Protection—and therefore needing legal aid to pursue their remedy and obtain protection. It is fair to say that it is unlikely that there would be many cases of this kind, and therefore, as has been suggested in respect of other amendments that we have discussed, the cost would be likely to be limited. However, the Court of Protection can deal with such matters by granted orders and injunctions to protect people from harm that may amount to physical or emotional harm, in addition to the ordinary rights that would be available regarding legal aid.
That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.
I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.
My Lords, I thank the noble Lord, Lord Ramsbotham, for introducing this group of amendments. Arguably, there is nothing more fundamental for a parliament to discuss than the relationship between the state and the citizen. His amendments have given rise to an important debate, with contributions from my noble friend Lord Phillips, the noble Earl, Lord Sandwich, and the noble Lords, Lord Judd and Lord Howarth. I hope that I can reassure Members of the Committee in my response.
Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority’s actions on public grounds.
In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages claims against public authorities for an abuse of position or powers, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult, or allegations of a sexual offence. The definition—about which I shall say more—of:
“Abuse of position or power by public authority”,
is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property. Our definition would exclude from scope a range of less serious cases against public authorities—a point made by my noble friend Lord Phillips—including simple negligence claims such as “slipping” or “tripping”. He asked if “deliberate” abuse of position or power is the same as “intentional”. The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether “deliberate” referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm.
Amendment 60 would widen the scope of paragraph 19 of Part 1 of Schedule 1 to make legal aid available for claims in tort or other damages claims for any alleged unlawful act by a public authority that causes harm. Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19, which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope.
Alternatively, public law challenges to the lawfulness of a public authority’s action can be brought by judicial review, which is in scope under the Bill. We have focused limited resources on those who need them most and the most serious cases, in which legal advice or representation is justified. I accept that that approach means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses.
Specifically, the noble Lord, Lord Ramsbotham, highlighted the important issue of the loss of liberty. He seeks to amend paragraph 19(7) of Part 1 of Schedule 1 to specify that harm includes loss of liberty. Currently, paragraph 19 provides for civil legal services to be provided in relation to abuse by a public authority of its position of power. That allows, typically, for damages claims to be funded for the most serious claims against public authorities.
Paragraph 19(6) provides that an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission is deliberate or dishonest—we have already indicated what is intended by deliberate—and results in harm to a person or property that was reasonably foreseeable. Paragraph 19 already covers the situation where the harm suffered by an individual results in the loss of their liberty, as long as the act or omission which resulted in that loss of liberty was deliberate or dishonest and the harm, in the case of loss of liberty, was foreseeable as a result of that action.
By way of illustration, paragraph 19 would allow for legal aid to be provided for a person to bring a false imprisonment claim where they had been unlawfully detained by a public authority and the actions of the authority were deliberate or dishonest. Noble Lords should note that legal aid may also be available for bringing claims in relation to a loss of liberty such as false imprisonment claims under paragraph 20 of Schedule 1, providing that the act of a public authority involves a significant breach of convention rights. It also retains within scope legal aid for other means of challenging detention or loss of liberty. For example, civil legal services provided in relation to a writ of habeas corpus have been retained in scope under paragraph 18. Public law challenges to the lawfulness of a public authority's actions could be brought by judicial review, which is in scope under paragraph 17. The Bill also allows for the provision of civil legal services in relation to immigration detention, including bail applications. I hope that that gives some reassurance to the noble Earl, Lord Sandwich, and the noble Lord, Lord Beecham, who raised that matter. That is available under paragraph 22.
Although paragraph 26(1)(a) allows claimants to be granted legal aid in respect of asylum, it does not extend to the families of refugees who seek to rejoin the principal member of the family in the United Kingdom. Anxiety concerning that omission has been expressed by the UNHCR. Can my noble and learned friend say anything on that?
It is an important point, which has been raised before in the context of the Bill. I think that Amendments 69 and 71 in the name of my noble friend Lord Thomas of Gresford—to which we will come, dare I say, sooner rather than later—raise the point about families of asylum seekers. I hope that when we come to that, we will have a proper debate on the important issue that my noble friend raises.
The Minister is defending the Bill’s drafting against the proposal of the noble Lord, Lord Ramsbotham, in Amendment 60. Is he therefore saying that if someone is the victim of a mistake by a public authority—not a deliberate mistake or one dishonestly intended but none the less an egregious error arising from ignorance of the law, which ought to be known by the people working in the public authority—there is to be no legally aided redress for the citizen, even if the harm is considerable?
As I said to my noble friend Lord Phillips, the Bill does not include negligent actions of a public authority. I made very clear that it is intended for the serious-end range of abuse of power and the harm that results. It is not intended to include all that lies by way of negligence.
I am sorry to interrupt the Minister’s flow, but this is a valuable opportunity to get to the bottom of this. From what he is saying, a reckless act on behalf of the state would be neither deliberate nor dishonest. If it was reckless, there would be no redress. Can that be right?
My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about “unlawful”, because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.
As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority. The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 it would not be available but, as I said, paragraph 20, which covers a significant breach of human rights, might nevertheless allow for funding in those circumstances, or cases might be taken forward by way of judicial review, which might be available for funding.
There is a range of provision in Schedule 1 for cases to be taken forward against public authorities, not solely on the particular part of the schedule to which the amendment of the noble Lord, Lord Ramsbotham, is directed.
We quite understand the point that the noble and learned Lord is making: that the intention of Ministers is to restrict legal aid to serious cases and that that is the measure. Would he reflect on the position of someone whose liberty has been wrongfully denied and whether it would be any consolation to know that that resulted not from a deliberate act but from some oversight—a mistake, to use the words already employed, of an egregious kind? It does not seem to me that it makes much difference, if you are unlawfully detained, whether it was just by mistake.
I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources—I think that there is recognition that resources are limited—where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence. The noble and learned Lord, Lord Neill, asked what it covers. The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.
Why should it be only the most serious abuses that allow the victim to get legal aid? There are all kinds of abuses. We know that there are some petty abuses and perhaps I would agree with the Minister that not every petty abuse should allow the victim to get legal aid. There are very serious abuses, which the noble and learned Lord says his Bill intends to cover, but what about medium-sized abuses? I am talking about abuses that are pretty severe for the victim. Should the state be stopped from dealing with those? Why should the victim not be able to get legal aid in order to get a remedy in such a case? Why are the Government saying that the abuse has to be really serious?
My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—
Did the Minister really say that in no circumstances would legal aid be available where the infringement immediately appeared to be minor? Does he not recognise that lawyers often come across cases that appear to be minor but later become rather more serious? What remedy is available in such an instance? Is the Minister really arguing that, once it is decreed that a situation is minimal, there is no possible remedy?
It is not that there is no possible remedy; it is a question of whether legal aid would be available—whether it is within scope. I do not shy away from the fact that these are difficult judgments to make, but the resources are not unlimited. The noble Lord, Lord Clinton-Davis, refers to a minimal infringement. If the resources are limited, it is very difficult to see why a minimal infringement, which may be one of error, should attract the same level of resources as a case where there has clearly been a misuse or abuse of power on the part of a public authority.
I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in many of the cases that we are talking about where legal aid might not be available, conditional fee agreements might provide a viable alternative where there is clearly merit in the case but it would not qualify under the definition here.
I am sorry to intervene and I am grateful to the Minister for giving way. Are the Government approaching this matter as though it is to deal only with claims for damages? Of course, other forms of relief might be sought—injunctive relief, declarations and so on—that might bring a spotlight to bear on the alleged abuse that has occurred. That might be the most powerful way of dealing with the error in the first place. Is that not something for which legal aid should be available?
My Lords, I have tried to identify the other parts of Schedule 1 where other remedies are indicated to be within scope. If I can find the place in my notes, I shall be able to make them very clear. I think I made it clear that judicial review, referred to in paragraph 17 of Part 1 of Schedule 1, is within scope of legal aid. I entirely agree with the noble Lord, Lord Beecham, that there may be many cases where that is the most appropriate route to go down and it would be within scope. However, I have indicated that, where damages are concerned, the criteria that I have tried to set out are the ones that would apply at the serious end of abuse. I gave specific examples of things that are within scope within the schedule, judicial review being possibly the most obvious.
Will the noble and learned Lord consider very carefully whether he is really content that through the Bill the Government are in effect carving out a significant area of immunity for their agents where they might have acted incompetently or irresponsibly—not deliberately or dishonestly but incompetently and irresponsibly—and, in so doing, have caused considerable damage to individuals? In stipulating that legal aid should not be available to enable individuals to secure redress and damages in such a situation, surely the Government are acting to protect themselves in a way that is simply wrong when one considers what the proper relationship between the state and the individual should be.
My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.
Part 1 of Schedule 1 indicates a number of remedies that are available and within scope. We have sought to make available a range of remedies, particularly with regard to the protection of the liberty of the subject. A deliberate policy choice was made to try to ensure that legal aid would be available to safeguard the liberty of the subject. No doubt the noble Lord, Lord Judd, is being patient.
I am very grateful to the Minister for giving way. He is being given quite a cross-examination at this stage in our considerations. Before Report, when he is considering what has been said in this debate, I plead with him to remember that this is not just a private matter between the individual concerned and the authorities. In this very sensitive area of public policy there are bound to be much wider ramifications. Ultimately, this is about the credibility of the Home Office and its policies and how they operate. If there appears to be a reluctance to put right generously what has been done indefensibly, that will hardly help to achieve public confidence in the general policies as they are applied. I hope that the Minister will take away that general point, because it is crucial to our deliberations.
I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.
The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,
“(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.
Section 6(5) of the Human Rights Act goes on to provide that,
“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.
Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.
The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.
I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.
At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.
Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.
Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.
I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.
Paragraph 4 of Part 3 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.
It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.
My Lords, I am very grateful to the noble and learned Lord for summing up in a very complicated summing-up situation. I am also extremely grateful for the many powerful interventions that were made both immediately after the amendment was moved and during the Minister's summing up. I think that their content has increased understanding and has pointed out many more aspects of the problem than I was able to point out in moving the amendment. Some very serious points have been raised and I think it behoves us all to read very carefully in Hansard what has been said in the House this evening. I think and I hope that it will be possible, having done that, to have a discussion with the Minister and with the officials concerned with this issue before we bring it back on Report. Issues involving people who are in the hands of the state should not be allowed to be dropped until we are absolutely certain that the legislation is clear and protects the most vulnerable who are up against the state. Meanwhile, I beg leave to withdraw the amendment.
Amendment 60 withdrawn.
House resumed. Committee to begin again not before 8.27 pm.
Independent Monitoring Commission for Northern Ireland
Question for Short Debate
My Lords, the intent of my Question is to ensure that we do not forget about Northern Ireland and to remind the House that this is still a work in progress. We have a responsibility to ensure that a politically devolved Northern Ireland remains committed to transformation of its society. We spend a great deal of money—£14,000 million, or £14 billion—to help it through this process and it is important that we keep ourselves informed about progress. Since the 26th and final report from the Independent Monitoring Commission for Northern Ireland was presented to the House in July last year, a number of extremely violent incidents have occurred there. Although everyone must be relieved that the appalling terrorist activity has apparently come to an end, it has not completely disappeared and we must be vigilant about any recurrence.
I believe that the IMC has done a fantastic job. It was set up five years after the signing of the Belfast agreement, at a time of great turmoil in Northern Ireland. There was no real political agreement on a way forward and there was a continuing atmosphere of mistrust between political parties. As the report recognises, at the time that the IMC was set up paramilitary groups had not decommissioned their weapons and, although generally not attacking the organs of state, they were still engaged in illegal and often violent activity. Some also had strong links to political parties. Article 3 of the terms of the agreement stated that the IMC was set up,
“to carry out its functions … with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland".
It had a very difficult task to perform. During its time it reported on abductions, murders, violence of a terrible nature, robberies on a grand scale—most notably that of the Northern Bank in Belfast—and ongoing feuds between paramilitary organisations.
As well as its six-monthly paramilitary reports, the IMC produced a number of ad hoc reports on various initiatives that it had undertaken, either on its own or at the behest of the Irish and British Governments, and the progress evident through these reports is remarkable. They chart the steady progression towards a normalised society. All those concerned with the IMC over the years are to be warmly congratulated on their work, bravery, dedication and commitment to the building of the very different Northern Ireland that we see today, some seven and a half years since they began their task. I pay particular tribute to my noble friend Lord Alderdice, who is unable to be with us tonight and who was a member of the IMC throughout its term of office.
The IMC’s work must, at times, have been utterly gruesome. Covering a land area not much bigger than that of my home county of North Yorkshire, Northern Ireland had four paramilitary murders and more than 200 brutal paramilitary shootings or assaults in 2005, a year after the IMC started its work. In the seven years since, there have been 21 murders and more than 800 reported casualties of paramilitary violence and a resurgence of serious violence by dissident republicans. Can the Minister tell me how many paramilitary-related incidents have taken place since the IMC's last report was published? How many incidents classed as violence have occurred in Northern Ireland in the past six months, and how does that compare with the preceding six months?
I was privileged last year to meet some of the victims of these crimes. They were cared for and supported by an extraordinary organisation called WAVE, led by a young man called Alan McBride. The organisation offers support to people bereaved of a spouse as a result of violence in Northern Ireland. I met many other truly inspirational people who are doing a marvellous job helping those afflicted as a consequence of the Troubles. My programme was organised by the Northern Ireland Human Rights Consortium, to which I owe a huge debt of gratitude for showing me the magnificent work done by these groups. They all work tremendously hard in desperately deprived areas of Belfast, which we must visit if we are to understand the difficulties that organisations face in their efforts to support those in most need.
Northern Ireland is different. Paragraph 5.6 of the report states:
“Members and former members of all paramilitary groups remain very active in non-terrorist types of crime—a bequest from the Troubles which will dog Northern Ireland for years and will require a substantial continuing effort from law enforcement agencies”.
Perhaps I may ask the Minister how many PSNI officers there are now compared with six months ago, and whether it is the Government's assessment that these numbers are sufficient to ensure the safety of the people of Northern Ireland.
We should never forget how far we have come since 2004, when there were still more than 14,000 British troops in Northern Ireland, occupying 24 bases in an area—I remind your Lordships—not much greater than that of North Yorkshire. Army personnel were based in 13 police stations, and nine sites were used for observation and communications. For 38 years there had been a regular military role in law enforcement—the largest in British military history so far—and the IMC clearly had a huge role in helping Northern Ireland overcome the terrible years of mayhem, when it seemed to many that there would never be peace. However, much still needs to be done and the Secretary of State has promised regular six-monthly reports to the House about progress towards a shared future. Is the Minister able to confirm that a report will be presented shortly?
My sincere hope is that there will be much more integrated education to enable the young people of Northern Ireland to live together, respecting each other’s cultures, instead of being separated as they have been for too long. I pay tribute to the tireless work of the noble Baroness, Lady Blood, who has been an indefatigable promoter of integrated education, as has the noble Lord, Lord Dubs. Neither of them is in their place this evening.
Finally, I will quote again from this excellent report. On page 55, in the section “Looking Ahead”, it states:
“In our view, Northern Ireland should now address its continuing issues by conferring full responsibility on its own political and other institutions. … Paramilitary violence is still a real issue. Dissident republicans are an active and serious threat, especially at the moment against members of the PSNI. … Loyalists … have yet to inspire confidence that they are capable of finally going away as paramilitary organisations, as PIRA has. Some members and former members of all groups remain heavily involved in a wide range of serious crime … presenting a challenge to law enforcement which is significantly more serious than it would otherwise have been. … Northern Ireland's political and other institutions, and the UK Government in respect of national security, therefore have a heavy continuing responsibility to complete the process whereby paramilitary groups finally cease to play a part in society. That responsibility goes wider, to the communities in which paramilitary groups still play a role. … There are some in those communities who have to learn that paramilitary groups hold back their social and economic development and that only by rejecting them and whole-heartedly supporting public and voluntary institutions and the rule of law can they fully throw off the bequest of the Troubles. … The main responsibility for dealing with these challenges rests with the Assembly, the Executive and local politicians, working in conjunction with community leaders, churches, the law enforcement and other public institutions, and ultimately with the people of Northern Ireland as a whole. … It is this inclusive leadership which must now jointly guide Northern Ireland along the rest of the road”.
My Lords, I congratulate the noble Baroness, Lady Harris of Richmond, on securing the debate. I also congratulate the four persons who have been commissioners of the Independent Monitoring Commission over the past seven years, and thank them for the excellent job they have done.
Perhaps I may be permitted some purely personal reflections. It was my colleagues and I, during my time as First Minister of Northern Ireland, who suggested to the Government that such a body should be created. We did this in more specific terms, saying that as we had an oversight commissioner for the police and one for the justice system, we should have one for paramilitarism. The proposal evolved somewhat after it was originally made. I am sorry to say that when we put it to the Government we encountered fierce resistance from the Northern Ireland Office. Indeed, I remember a very senior member of the Northern Ireland Office saying to me that he was not going to have some other person overseeing what he did. He was quite right to have that concern because, while one put the proposal in terms of having independent reportage and oversight of what paramilitaries were doing, the whole object of the proposal was to try to curb the behaviour of the Northern Ireland Office, which unfortunately at times was not satisfactory. Respect for the Northern Ireland Office hit bottom when a Secretary of State for Northern Ireland, after a paramilitary murder, dismissed it as merely “internal housekeeping” by a paramilitary organisation. That sort of licence to murder was something that no government Minister should have been issuing. We were worried about the way in which the Northern Ireland Office would allow expediency and other political considerations to affect what should have been the administration of justice.
It took quite some time before the concept was formally announced in, I think, July 2002. A few months before, there was a crisis that resulted in the suspension of the Northern Ireland Assembly, and I have always felt that if we had had this body in existence before then, we might very well have avoided that collapse and the consequent nearly five-year hiatus in the institutions in Northern Ireland. But it came, and it had a very positive effect.
I do not want to try to go over all the detail, but I must say that my eye was caught by a sentence on page 45. The Independent Monitoring Commission says that one of the tasks it set itself right at the outset was to deal with the ceasefire mentality, which in its view had,
“for too long been used to obscure and avoid the challenging implications of the Belfast Agreement: that there had to be a complete severance between politics and paramilitary activity, and that this could come about only if those paramilitaries ceased to act as such”.
I have to say that it was not just the ceasefire mentality that was used to obscure those implications; there were political parties working overtime trying to obscure them. I am thinking primarily of Sinn Fein and its allies, but it was quite shameful at the time that there were some unionists who supported that activity by Sinn Fein by assuring it that the republican paramilitaries were not under any obligation to decommission or to cease to exist at that time. Thankfully, they have changed their opinion, but it took some time before that happened.
In opening, the noble Baroness, Lady Harris, said that we still have a responsibility with regard to these matters, and that is right. She also mentioned the expenditure that we engaged in. I notice that the expenditure of the Independent Monitoring Commission averaged out at less than £1 million a year. I venture to suggest that very few million pounds have been spent in Northern Ireland so usefully and to such good purpose, and I do not think it would have caused any great difficulty for government expenditure if that had continued. It was—as I read this report, and obviously this is a matter of interpretation—largely at the instance of the British and Irish Governments that the commission was wound up. I regret that. I think there is still a valuable role that it could have taken. If we are now without that, it increases the responsibility on us to see that this matter is not forgotten. Speaking to me earlier, the noble Baroness said that the Secretary of State for Northern Ireland said that he was going to make regular reports to Parliament on these matters. I hope that happens and that we in this House get an opportunity to receive and to repeat such reports and to scrutinise them effectively.
My Lords, I thank the noble Baroness, Lady Harris of Richmond, for tabling this Question and thus facilitating what I am sure will be a fair and balanced discussion of the role and nature of the Independent Monitoring Commission. Over the past seven years, the IMC has had a challenging and onerous task, one that I believe it carried out with scrupulous independence. During that period, the commission published 26 separate reports. In many instances, they were strongly criticised by commentators in the media and by politicians of all parties. However, it is now generally accepted that the IMC’s conclusions were fair, unbiased and based on the best available evidence derived from careful and meticulous investigations. I did not envy its task. When the facts or circumstances that it presented rebutted a publicly accepted assumption, the commission members were often pilloried by politicians and in the press. The task of publicly presenting uncomfortable truths, often when the peace process in Northern Ireland was known more for its fragility than for its stability, was as controversial as it was unpalatable, but without the IMC we would not have attained the necessary levels of public trust and confidence to allow the restoration of the devolved institutions in Northern Ireland in 2007. Without the IMC, the two communities in Northern Ireland could not have been convinced that their political enemies would make a positive contribution towards the creation of a better society for all. For that, I am very thankful.
In conclusion, I should mention the IMC’s final report, which focused, unfortunately, on civil disturbances of a sectarian nature in east Belfast, the constituency that I represented for 25 years at council and assembly level. I had very much hoped that events of this nature had been relegated to history, and the report was indeed disturbing and depressing to me. Nevertheless, I take comfort from the fact that both communities continued to co-operate, the men of violence were sidelined and a descent into a spiral of sectarian violence was avoided. Perhaps we may conclude therefore that the fair and balanced final report of the IMC contributed in no small measure to achieving reconciliation between the two communities in Northern Ireland. Perhaps the Minister will agree that the greatest achievement of the commission is the general agreement in Northern Ireland that it is no longer required.
My Lords, I would like to express my thanks to the noble Baroness, Lady Harris, for securing this debate. I would also like to pay tribute to the members of the commission, who have done a wonderful job in securing the trust of the people by the way in which they went about their work.
The commission's 26th and final report includes three important issues. The first is that a “culture of lawfulness” is,
“evidently lacking in communities dominated by paramilitaries”.
The second is that,
“Dissident republicans are an active and serious threat ... Some members and former members of all groups remain heavily involved in a wide range of serious crime”.
The third is that,
“The fundamental principle of the Northern Irish peace process … is that politics is the way to address communal challenges and to draw the whole society into full acceptance of the institutions of democracy”.
Our troubled past still impacts on our perception of the rule of law. The noble and right reverend Lord, Lord Eames, did valiant work as co-chair with Denis Bradley on the Consultative Group on the Past. They identified areas in which action was necessary, from memorials to storytelling to victims. There has been no real movement since the publication of that report three years ago. We currently have a perception that there are people who have committed crimes for which they have not been made amenable, so the two issues are the application of the rule of law and the responsibility of politicians. The systems currently established for dealing with the past involve three institutions, each of which may be involved in one case: the Historical Enquiries Team, the Police Ombudsman for Northern Ireland and the Police Service of Northern Ireland. This is a cumbersome set of arrangements and is beset by legal difficulties for all parties, which inevitably result in significant cost.
So how do we manage the past? The difficulties are perhaps best explained by reference to two recent developments. The first is the publication under the 30-year rule of papers relating to the hunger strike in 1981. IRA spokespersons have consistently insisted that no concessions were made by the Thatcher Government which were sufficient for the hunger strikers to bring an end to the hunger strike. The published material contradicts that assertion. It appears to indicate that lives could have been saved. Despite the facts that some of those involved are still alive, there is no threat of prosecution and that no amnesty is required, we do not have an agreed version of what happened. The second involves the recent controversy surrounding the British application for the tapes recorded by former IRA member Dolores Price and stored in an archive at Boston College in the United States. Since making that tape, Ms Price has indicated that she drove a number of the disappeared to their deaths at the hands of the IRA. Police investigating the abduction and murder of Jean McConville, a mother of 10, require access to the tapes for investigative purposes. The Boston project was predicated upon assurances that the tapes would not be disclosed until after a period of 30 years, or the death of the individual. It is obvious that such assurances could not lawfully be given. Journalists and academics are subject to the rule of law as the rest of us are, and material can and will be recovered by the police according to the law for investigation purposes.
It is now being suggested that the only way to deal with the past would be a truth commission, with an amnesty for all individuals who appear before it. To suggest this is to ignore international law, which provides that you can have no amnesty for gross violations of human rights. The South African Truth and Reconciliation Commission, which is often held up as a model, would not satisfy the requirements of international law. If we did what it did, we would have to establish an amnesty committee that would sit in public, before which people would have to appear to seek amnesty, and in the course of which they could be cross-examined by victims and their families. In South Africa 7,000 people applied; 849 were granted amnesty. Such hearings in Belfast could hardly be expected to consolidate the peace process. The consequential truth commission would hear testimony from individuals who chose to appear. Experience to date suggests there would be a very low participation rate.
Let us go back to the investigations. A number of impediments exist. Offences committed before 1998 can only carry a maximum sentence of two years. The Northern Ireland Arms Decommissioning Act provides that you cannot use anything recovered from the process of decommissioning. The Northern Ireland (Location of Victims’ Remains) Act provides that you cannot recover anything that may be found in the process of recovering the body. A number of people have also been dealt with under the Royal Prerogative of Mercy, and a variety of pardons have been granted to an unknown number of people. Our situation is as complex as that of most post-conflict societies. We need to establish the rule of law in order to limit the ongoing prospect of further recruitment by the dissidents, and further recruitment and criminality by loyalist paramilitaries.
If we accept that we cannot just allow people to tell their stories to journalists with impunity and without challenge, because the law does not permit that; if we accept that a truth commission is unlikely to be able to provide blanket amnesties, because the law does not permit that; if we accept that the hands of investigators have been tied, what is left? There is the normal activity of storytelling; and there is a single independent unit to investigate all the unsolved murders of the past in an attempt to pick up from where we are now and to carry forward the investigation of individual cases in a coherent manner—accepting that few of them may lead to prosecutions but that the families will be told what can be told.
We still face a significant challenge in Northern Ireland. The warnings of the IMC are very clear. Our politicians and our people have a duty to act. What positive action can the Government take to encourage this?
My Lords, as I read this clear, calm, measured report, one thought above all kept coming back to me: that the commission which produced it was a remarkable body to which not just Northern Ireland but the whole country owes a considerable debt. It is deeply satisfying that the House has been given this opportunity to pay tribute to it, thanks to my noble friend Lady Harris of Richmond.
The commission had no precedent, no previous example of similar work to guide it. Nothing like it had been seen in these islands before. Drawn from three different countries and from diverse backgrounds, those who served on the commission were clearly people of great honour and probity and not a little ingenuity. The report shows that they worked closely and successfully together, despite—or perhaps because of—the absence of a formal chairman, an interesting aspect of the commission’s operations that should be noted.
The commission was independent in name, and in every deed and action it performed. Its independence was the secret of its success—combined of course with the care and impartiality with which it examined the vast amount of material drawn from both official and private sources that was placed before it. As a result, its statements and views commanded widespread respect—the more so since they were delivered crisply and frankly.
The commission’s final service was to provide a lucid summary of its own seven-year career. It is surely invaluable to have this record of unprecedented experience. Other countries afflicted by division and politically motivated violence may wish to consult and learn from it. The IMC model may not be transferred wholesale elsewhere, but it could prove immensely helpful to others facing circumstances of civil strife. The commission itself declared that:
“We are least well placed to judge our impact and future historians will have most to say about it”.
Speaking as a current historian, I am sure that these future historians too will feel gratitude for this report when they come to form considered historical judgments on the violence that racked Northern Ireland for so long. It would be surprising if they did not accord a position of some prominence to the IMC when tracing the factors that finally brought about the diminution of Ulster’s agony.
The commission had other important functions, but it is likely to be remembered chiefly for the thoroughness and rigour with which it monitored the paramilitary violence that continued after the formal declaration of ceasefires by terrorist organisations. As its report states,
“we sought to bring out the human cost of paramilitary groups, in terms of both the immediate victims of their crimes and the way in which they held back the economic and social progress of the communities they claimed to represent”.
The completely impartial way in which it did this enabled the commission to give positive assistance to Northern Ireland’s progress towards greater normality, particularly in the years 2004-05, when the evidence it produced of continuing links between the IRA and Sinn Fein intensified pressure on the latter to commit itself more firmly to the democratic path. The commission also put the loyalist paramilitaries under significant pressure, exposing the details of the violence in which they remained involved while at the same time, as the report puts it, they sought to play,
“a continuing role in community development and wanted public funds for the purpose”.
In its characteristically restrained and modest prose, the commission declared last year as it took its leave that:
“The position as we close is very far from ideal”.
The shadow of the gunman still falls too darkly and heavily over the people, particularly those in poorer communities, in Northern Ireland. The so-called peace walls, those potent emblems of division, have increased, not diminished. The Police Service of Northern Ireland continues to have a formidable duty of community protection before it, and my right honourable friend the Secretary of State for Northern Ireland is providing an extra £200 million over four years to assist it in this task during this time of national austerity.
What our fellow countrymen and women in the Province need above all is a cross-community political strategy for a shared future. The Independent Monitoring Commission’s report welcomes the establishment of an inclusive devolved Government. With it now rests the main duty of creating,
“a genuinely shared future; not a shared out future”,
as my right honourable friend the Prime Minister has put it. Sadly, the Northern Ireland Executive has so far shown insufficient resolve in rising to this challenge. It must take some serious decisions if the people of Northern Ireland are to enjoy to the full the legacy of the work done by the Independent Monitoring Commission.
Parliament must itself keep abreast of the activities of the Executive to help it secure progress. We must not repeat the error made after 1920 under the Province’s first system of devolved government, when Parliament closed its eyes to the internal affairs of this part of our country. As the noble Baroness, Lady Harris, said at the outset, we must never forget Northern Ireland.
My Lords, I join with others in thanking the noble Baroness, Lady Harris, for securing this debate.
The inception of the IMC was primarily a confidence-building measure. It was negotiated at great length, and one person who deserves some mention for it, as I hope the noble Baroness, Lady Smith, will know, is her right honourable colleague, Paul Murphy, who played a significant role as Secretary of State and Minister of State in Northern Ireland. As my noble friend Lord Trimble said earlier, during the negotiations we found there were those who did not want it to shine a light on some of those people who were conducting very unsatisfactory activities right across the Province.
The reality was that when eventually it did come on the scene, late in the day as it was, the IMC was derided and criticised. It was referred to as a paper or toothless tiger that would never gain the confidence of people in the community. However, as all noble Lords who have spoken so far have conceded, it made a very significant contribution to the progress that has been made.
As I have said to the Minister—and I hope that he will respond to this when he answers—I feel that it was premature to wind the commission up at this stage. I suspect that it was never intended to last for seven and a half years but, nevertheless, it successfully shone a light consistently and independently on all paramilitary organisations. It held their feet to the fire, despite the fact that some of them were negotiating for money to keep organisations that they particularly sponsored going, whether it was from a community point of view or otherwise. Someone was there always to look, to see, to point out and to report on what was going on. That is missing at present.
Some months ago, the Secretary of State called a meeting to which a number of us were invited and attended. Will the Minister confirm that the Secretary of State will follow that up with another meeting and that they will be held regularly so that members can be briefed on the details as the Government see them? My noble friend Lord Lexden made a very valid point. In the 1920s, once the devolution had settled and the Parliament for Northern Ireland was established, it was effectively the end of the story and people turned their minds to other things. We must not allow that mistake to be made again.
We all understand that money is tight and that £800,000 or whatever a year is still a lot of money. I accept that. But set that sum against the colossal financial and other costs that were borne by this entire community and the very many victims in Northern Ireland, in my view it was money well spent and a small price to pay for an independent guarantee. Because governmental and other material had been put into the public domain, people did not believe that there were some people—and I pay tribute to all of them—who were not afraid to say that a particular group or organisation was doing what it was doing.
I have to say to noble Lords that the paramilitaries still are the role models for many young males, particularly in deprived areas, because there are no others. They fall into the trap and even the dissident republicans are now recruiting among teenagers. Indeed, some of them have already been arrested and charged.
I believe that the commission deserves to be congratulated. I am glad that we got it going and I am sorry that it did not come earlier. I am also glad that those who derided it found, ultimately, confidence in its decisions. It is a good thing and, while this chapter has now closed, at least it is something in which those who participated can take pride in the work that they have done.
My Lords, like other noble Lords, I thank the noble Baroness, Lady Harris of Richmond, for securing this debate. She is well known to be a good friend of Northern Ireland and her work in bringing about this debate is yet another example of what a good friend she is to the Province. I, too, should like to recall briefly the struggle to set up the IMC. I very much agree with the point made by the noble Lord, Lord Trimble. The truth of the matter is that the IMC was not enthusiastically received in the early days of debate by the Northern Ireland Office or the Irish Government. It is hard to recall that now because it has been so successful.
I should like to pay tribute in particular to Michael McDowell, a former Nieman fellow at Harvard and recently an official at the World Bank, who from his position in a Washington think tank kept No. 10 Downing Street under siege with regular e-mails arguing vigorously for the establishment of the IMC in the months leading up to its appointment. Today, I was talking to Jonathan Powell, Mr Blair’s chief of staff at that time, who recalled honestly the weight and significance of Michael McDowell’s constant advocacy. It is important to pay tribute to the work that he put in on that absolutely crucial issue.
Turning to the report itself, I should like it to be understood in your Lordships’ House that the report is not an answer to questions about where Northern Ireland is now and how we move it forward. It is instead an answer to the different question: what was the modus operandi of this body? As the IMC was a unique body, it may be important to describe how it worked. The report is an attempt to answer that question, rather than being in any real sense prescriptive about the future of Northern Ireland, and it is entirely right that that should be and is so. There are a number of conclusions to the report where members of the commission outline what they think are the key lessons.
Perhaps slightly impertinently, I should like to add a further lesson, which one should draw from the experience of the IMC—that is, a willingness to take it on the chin. The degree of criticism and abuse that the IMC received, particularly in the earlier years, was quite remarkable, as well as the strong refusal of many people in Northern Irish society to accept that it could perform a viable role or could be considered to be, in any sense of the word, independent. One of the remarkable things about the report is the way in which it quotes from some of those testimonies, including an article in the Irish News, the leading nationalist newspaper in Belfast, on 29 November 2008, which stated:
“In reality, British intelligence operates through deceit, dishonesty, murder, blackmail, double-crossing, cheating, conniving and downright thuggery. It may sound harsh but there is simply no other way to run an intelligence service. Their use of loyalist paramilitaries and informers beat the PIRA. So the intelligence agencies will tell the IMC whatever it takes to bolster support for the current political administration. That is what intelligence services do, which means that the IMC, and other opinions based on supplied intelligence are effectively worthless”.
That is a common enough comment from this period. It is a mark of the calibre of the IMC and the people who served on it that it reprinted that quote. They took this kind of thing on the chin because that was what they had to do and then carried on with their work in a steady way.
Finally, I am sure that the noble Lord, Lord Alderdice, would not mind that we should mention the names of the other members of the commission: Joe Brosnan, of the Department of Justice in Dublin; Dick Kerr, an important figure in American intelligence; and John Grieve, who had such a distinguished career in our police service.
My Lords, we owe a debt of gratitude to the noble Baroness, Lady Harris, for the opportunity for an invaluable and very interesting debate on the final report of the IMC. The debate is an opportunity to reflect on the changes tracked by the IMC since it was established in 2004—changes which, despite strong commitment from the British and Irish Governments, and the Northern Irish political parties, some doubted could be made. Indeed, once the process of change began, the pace and degree of change from some of darkest and most frightening of times is quite remarkable. It is remarkable that today a new generation is growing up with no memory of those times or how great the threat of terrorism was across the whole of the UK, both in Great Britain and Northern Ireland. The final report reflects on this and has a wealth of factual information and analysis.
As we have heard, the IMC was established in 2004 following agreement between the British and Irish Governments. Its monitoring activity of paramilitary groups provided 20 of the 26 reports; the remaining five reports on security normalisation culminated with the conclusion that,
“the normalisation programme as a whole has been complied with”.
Despite perhaps understandable cynicism from some quarters, the Government ensured that the IMC had detailed information from the Army so that the IMC could monitor its normalisation plans. It is evident that the independent assessments of the IMC on normalisation and paramilitary activity helped to create the climate for the British and Irish Governments and the Northern Ireland political parties to edge closer to the next stage of meaningful dialogue.
The initial fears from some republicans that the IMC would investigate only republican paramilitary activity were disproved in the very first report, when it concluded that loyalist groups were at that time responsible for higher levels of violence than republican groups. However, despite enormous progress on the political and paramilitary front, we share the IMC’s deep concerns about the attacks and threats to PSNI and its assessment of non-terrorist crime.
I have to say to the Minister that it is disappointing that to date the only response from Government to the report has been the Written Statement from the Secretary of State, Owen Paterson, on 4 July 2011 when the report was published—although it was completed in March. The Secretary of State praised the IMC and expressed his gratitude for its work and, recognising the problems that remain, wrote:
“I am conscious that Parliament and the public will wish to be kept informed of progress on a regular basis. I therefore intend to make statements to Parliament every six months summarising the threat”.—[Official Report, Commons, 4/7/11; col. 76-77WS.]
It is now just over six months since that commitment was given. Can the Minister tell us when we can expect the first of those reports? I appreciate the work that has to be undertaken to prepare such reports, but given the seriousness of this issue, they are essential.
The final section of the report, “Looking Ahead”, provides evidence that encourages but also gives concern. Circumstances, as we have heard, have changed significantly both in paramilitary activity and the stability and responsibilities of the devolved institutions. However, paramilitary activity has not disappeared, but changed. Dissident republicans are active and a serious threat, particularly against the PSNI, as we have seen, with horrendous consequences. Although loyalists have decommissioned, albeit with varying degrees of success, the IMC is not confident that they have finally disbanded as PIRA has, and they remain involved in serious and organised crime. The IMC's conclusion is that the level of serious crime is worse than it would otherwise be, and presumably worse than in other parts of the UK, because those involved learnt their “trade” in the most violent of times. However, it should also be recognised that policing has changed and that there are now unprecedented levels of co-operation between the PSNI and the Garda in the Republic.
The report’s second conclusion is positive and encouraging in recognising that the,
“stable and inclusive devolved Government”,
has now jointly to guide and lead Northern Ireland, along with community leaders. It is also implicit, as indicated by the noble Lords, Lord Empey and Lord Lexden, that co-operation must continue throughout the UK and within the Republic of Ireland. The continuing level of violence means that we cannot be complacent, because an increased level of violence has implications not just for Northern Ireland but also for Great Britain and the Republic of Ireland.
Can I make a final plea to the Minister and his Government? Stability in Northern Ireland is precious. Many people, some in your Lordships' House this evening, have worked very hard for a better, peaceful Northern Ireland and continue to do so. But Northern Ireland is bearing a heavy burden, with £4 billion of cuts and the greatest loss of public sector jobs in the entire UK. I urge the Government to think very hard about the impact of these cuts—the increase in unemployment and the increase in poverty—on a society seeking to deal with these other pressures that we have spoken of. All of us want a stable and inclusive Northern Ireland, but we also need a more prosperous Northern Ireland. To achieve that, the Government need to work with the Executive, not through their economic policies make it harder for them, especially given the backlog of investment that is needed.
I thank the IMC. The House needs to recognise that it did not have an easy task, but the way in which it conducted the responsibilities is to be praised and we should express our appreciation to all who were involved in it.
My Lords, I am grateful to your Lordships for the quality of the contributions made to this debate this evening.
It might be helpful to begin by providing some background to the IMC and its functions. Your Lordships will recall that it was founded as a result of an international agreement between the British and Irish Governments signed in November 2003. This stemmed from the joint declaration of the two Governments in April of that year. The commission was formally established when the agreement came into force on 7 January 2004.
Four commissioners were appointed: the noble Lord, Lord Alderdice, and John Grieve were appointed by the British Government; Joe Brosnan was appointed by the Irish Government; and Dick Kerr was appointed by both Governments on the nomination of the United States Government.
The noble Lord, Lord Alderdice, cannot be with us this evening to contribute to this debate. I know that he would have relished the opportunity to have detailed his experiences first hand, as we would have relished hearing from him. However, I take this opportunity to thank him for the important work completed by the commission and pay tribute to him for the role that he played alongside his colleagues and for that commitment over the seven-year period of its existence.
The commission’s remit was to monitor and report on paramilitary activities, on security normalisation and on any claims that any Minister or party in the Northern Ireland Assembly was not committed to democratic means. Having completed its remit, the commission was formally dissolved on 31 March 2011.
Tonight’s debate, however, concerns the IMC’s final report. I am sure your Lordships will be aware that it was very different from earlier ones. Rather than addressing the issues of paramilitary activity or security normalisation, the report focused on the changes that had taken place during the seven-year period of the commission’s existence. It also provided its assessment of the factors that helped it to deliver its remit and the lessons learnt.
The report is therefore a valuable document. It will be of interest to those who have been and continue to be involved in the peace and political process in Northern Ireland as well as to those who are involved in conflict transformation around the world. I am grateful to the IMC for this contribution and I am sure that it will be a document that has considerable longevity.
Your Lordships will of course also be interested in the detail of the earlier reports, 20 of which covered paramilitary activity and the other five security normalisation. With the time available to me this evening, it is not possible to go into any great depth, but it is worth highlighting, as did the noble Baroness, Lady Harris, how far the landscape in Northern Ireland has changed since the IMC’s creation in 2003.
The Provisional IRA’s statement in July 2005, which announced the end of its armed conflict was, of course, a defining point. As the then Prime Minister, Tony Blair, said, it was a “step of unparalleled magnitude”. In response to that statement, the Government undertook their security normalisation programme. That process was to last two years.
As I mentioned earlier, the IMC was obliged to report on that process. In September 2007, the commission published its 16th report, which confirmed that the Government had honoured their commitments and that the normalisation process was complete.
I am sure you will agree that the IMC played a crucial part in supporting and enabling historic changes in Northern Ireland over the years. It has assisted Northern Ireland's transition to a peaceful, stable and inclusive society, and we should not forget that.
Perhaps I may address the points raised by noble Lords. On paramilitary-related incidents, I can confirm to the noble Baroness, Lady Harris, that during the first six months of 2011, which is the period up to the final report, there were 30 paramilitary-style attacks and in the whole of 2011 there were 73. That compares with 94 in the whole of 2010. On 1 January 2012, 7,136 officers were employed by the PSNI, whereas in the previous July there were 7,197. So there are slightly fewer. However, the Government remain fully committed to ensuring that the PSNI has the necessary resources. Indeed, the noble Lord, Lord Lexden, referred to the fact that an additional £200 million has been put in by the British Government. Matt Baggott, the Chief Constable of the PSNI, has said that the service has,
“the resources, the resilience and … the commitment”,
to meet the threat.
On the Secretary of State’s undertaking to update the House regularly on threat levels, I can confirm that he has already done this in response to Oral Questions and other questions, but he will also make a Statement to Parliament in the coming weeks. I tried to go a little further, as the noble Baroness, Lady Smith of Basildon, is also interested in this. The word “soon” is a good word and I shall have to stick to that, but I do not think that we will have to wait long for this further information. As she has indicated, work has to be done and this has to be prepared.
The noble Baroness talked about progress towards a shared future. The Government will do all that we can to support the work of the Executive, especially in the key areas of rebalancing the economy and combating sectarianism, but the lead certainly has to come from Northern Ireland.
There was fulsome praise from one or two noble Lords for the work of the IMC. Many noble Lords—the noble Lord, Lord Empey, got closest to this—asked whether the work is really done and whether it should have been kept going a bit longer. If noble Lords refer to the document, they will see that Article 16 states:
“The Agreement shall continue in force until terminated by mutual agreement”—
that is, the British and the Irish Governments’ mutual agreement, which was agreed on 4 November 2010. We must remember that monitoring the British Government’s commitment to a package of security normalisation measures was dealt with and signed off, as it were, under Articles 4, 5 and 6. In addition, no party in the Northern Ireland Assembly has claimed that a Minister or Member has not committed to non-violence, so that has not been a consideration in seven years because no one has said, “This is someone we should be looking at”. We therefore return to what has taken the most time: the continuing activity of paramilitary groups. That is the one area that obviously still causes concern, the other two areas having been dealt with.
I have indicated that the British and Irish Governments have agreed that the agreement must come to an end, but if noble Lords look at page 55 of the 26th report, they will see that it is quite clear that the team at the IMC also takes that view. Article 15.1 states:
“The institutions designed to facilitate transition to normality—of which we are one—are of their nature abnormal and Northern Ireland has reached a point when it is right for them to leave the stage”.
Clearly, the IMC has seen its work as monitoring the paramilitary groups that were linked to political organisations and believes that that has been achieved. The area that has not been achieved is calling a halt to dissident activity. The IMC and the Government are now saying that that is now a role for the law enforcement institutions of Northern Ireland.
I do not know whether I said dissident republican—I think I said just said “dissident”—but if there is dissident activity, whether loyalist or republican, that is embraced in my remarks.
Although it is not really a matter for this particular debate on the IMC, I understand the real concerns of the noble Baroness, Lady O'Loan, about dealing with the past. The Secretary of State intends to meet the political parties in Northern Ireland again to seek views on how consensus can be found. While this Government have a role to play, any successful outcome will be possible only if agreement is found within Northern Ireland.
I agree with the noble Lord, Lord Lexden, that the 26th report is a really impressive document. It was a pleasure to read it in the sense that the team had really considered how the seven years had been spent. It may well be of interest to lots of people to understand how we came to undertake what we have been doing. I see the point that he makes.
I think that I have covered most of the points. I clearly agree with the noble Baroness, Lady Smith, that stability is precious and that the economy is important. Of course, in her initial remarks, my noble friend Lady Harris raised the point about the incredible resources that come from the taxpayer to support Northern Ireland. Noble Lords will be aware of the work of my right honourable friend in the other place who has certainly taken the initiative in rebalancing the economy and on corporation tax. We discussed that on an earlier occasion.
I think I am out of time and that I should conclude on that. If there is anything that I have not covered, I shall endeavour to write to noble Lords. In the words of us all, we thank the IMC for a piece of work well done.