20: Insert the following new Clause—

“Restraint orders and legal aid

(1) Section 41 of the Proceeds of Crime Act 2002 (confiscation in England and Wales: restraint orders) is amended in accordance with subsections (2) to (6).

(2) After subsection (2) insert—

“(2A) A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).

(2B) A relevant legal aid payment is a payment that the specified person is obliged to make—

(a) by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and

(b) in connection with services provided in relation to an offence which falls within subsection (5),

whether the obligation to make the payment arises before or after the restraint order is made.”

(3) In subsection (3)—

(a) after “subject to” insert “other”, and

(b) omit paragraph (c).

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(4) In subsection (4), for “But an exception to a restraint order” substitute “But where an exception to a restraint order is made under subsection (3), it”.

(5) After subsection (5) insert—

“(5A) A legal aid exception—

(a) must be made subject to prescribed restrictions (if any) on—

(i) the circumstances in which payments may be made in reliance on the exception, or

(ii) the amount of the payments that may be made in reliance on the exception,

(b) must be made subject to other prescribed conditions (if any), and

(c) may be made subject to other conditions.

(5B) Any other exception to a restraint order may be made subject to conditions.”

(6) After subsection (9) insert—

“(10) In this section “prescribed” means prescribed by regulations made by the Secretary of State.”

(7) In section 459 of that Act (orders and regulations)—

(a) in subsection (4)(a), after “section” insert “41(5A),”, and

(b) in subsection (6)(a), after “section” insert “41(5A),”.”

Lord Taylor of Holbeach: My Lords, I beg to move that this House do agree with the Commons in their Amendment 20. I shall also speak to Amendments 21 to 23, 27, 30, 39 to 41, 45, 48, 50, 134, 135 and 139. This group of amendments deals with two aspects of the operation of the Proceeds of Crime Act 2002. Commons Amendments 22, 23, 39 to 41, 50, 134 and 135 seek simply to return the reach of the civil recovery scheme under the Proceeds of Crime Act to the position it was believed to be in before last year’s Supreme Court judgment in the case of Perry v SOCA. The amendments to the 2002 Act do not introduce any new policy and we are certainly not breaking any new ground.

The amendments mean that the courts will again be able to make civil recovery orders against property anywhere in the world, provided that there is a link back to this jurisdiction. For example, the High Court of England and Wales will be able to make an order in respect of a Spanish villa bought by a criminal who is resident in England, or with money made from unlawful conduct committed in England.

The amendments also make it clear that requests can be made to other civil investigations where the evidence is located overseas to help facilitate the civil recovery process. These Commons amendments also put beyond doubt that investigation orders can be made against persons as well as property to assist in identifying further property which may become subject to a civil recovery order.

There is one difference between the restored Proceeds of Crime Act and how civil recovery operated prior to the Perry judgment. In the absence of a legislative consent Motion, the new schedule inserted by Commons Amendment 139 provides that the relevant amendments to the Proceeds of Crime Act do not extend to Northern Ireland. This means that for many offences the civil recovery regime in Northern Ireland does not have the international reach of the civil recovery regime in the rest of the UK. This is regrettable, especially for the people of Northern Ireland. However, as with the

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National Crime Agency, which we debated earlier, we have taken a series of order-making powers to enable us to extend the provisions to Northern Ireland at a later date. Of course, any extension will require consent from Northern Ireland for matters that are within the legislative competence of the Northern Ireland Assembly.

The second issue addressed by the amendments relates to the provision of publicly funded legal aid to wealthy individuals whose assets are restrained under the Proceeds of Crime Act. The 2002 Act prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. Prior to the Proceeds of Crime Act, there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. However, this has led to a public perception that rich offenders with significant restrained assets are receiving vast sums of free legal aid when they could afford to make a contribution to their defence.

Since the Proceeds of Crime Act was introduced, a system of means testing for legal aid has been introduced for all Crown Court defendants. Those who can afford to pay some of or all their legal aid costs are required to do so. While anyone charged with a criminal offence and facing imprisonment or loss of livelihood is entitled to legal aid, I think the whole House would agree that if the defendant can pay some of or their entire legal bill, they should. After all, as we ask people on modest incomes to pay something towards their defence costs, it is only fair and reasonable that we ask millionaires to do so.

Commons Amendments 20, 21 and 27 amend Section 41 of PoCA to allow payment of a contribution towards, and up to the full amount of, defendants’ publicly funded legal aid costs. The detailed mechanism of how this will operate in practice will be set out in regulations subject to the affirmative resolution procedure. In framing such regulations, we will take into account the compensation paid to victims and the funding of further asset recovery work by law enforcement and prosecutors. We can already freeze criminals’ assets to make it easier to recover these ill gotten gains and compensate victims, but that often leaves the state picking up their legal bills, even if the offender has plenty of money to pay them as well. I hope that the whole House will agree that our aim should be to increase the overall amount of money being taken from criminals. The new clauses inserted by Commons Amendments 20 and 21 will enable us to do just that. I beg to move.

8.45 pm

Baroness Smith of Basildon: My Lords, I will make a few comments, in particular in relation to the civil recovery process. The Government are right, following the Perry judgment, which left a huge hole in our powers to recover criminal assets, to bring forward the matter and put it on a legislative footing. However, we come back to the very strange position in Northern Ireland, which was confirmed by the Minister here and by Jeremy Browne, the Minister in the other place.

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The primary purpose of the schedule is to ensure that it is not possible to make a civil recovery order against property located outside the UK if the unlawful conduct occurred in Northern Ireland but the property is located outside Northern Ireland. This is a strange position. If somebody lives in Birmingham, Manchester or London and they stash their ill gotten gains in another part of the world such as Dublin or Spain, there is a legislative remedy to seek an order to have the funds returned. However, if somebody lives in Belfast, Armagh or another part of Northern Ireland and they have their ill gotten gains just a few miles away across the border, they are completely outside the remit of the legislation of this country. Criminals in Northern Ireland will be able to invest their criminal gains across the border in the Republic of Ireland, just a quick drive down the motorway, with complete impunity as the courts will have no way of seizing those assets. I find that a shocking state of affairs to face.

I took some time yesterday and on Google maps followed the border along. I always think of the town of Belleek where, if you walk down the high street, your mobile phone signal beeps from one side to the other because the border is so close that it is switching from the Irish server to the UK one. If you follow the border along, it is very difficult. A criminal could buy land in that area. We do not assume that everyone in Northern Ireland is going to do this, but criminals will know that if they live in Northern Ireland but store the proceeds of their crime just a few miles across the border, they are going to be outside the remit of legislation and nothing can be done. I have to agree with Ian Paisley MP, who said in the other place that,

“the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed”.—[

Official Report

, Commons,13/03/2013; col. 373.]

Another worry that the Government must have is criminals moving to Northern Ireland because it will make it easier for them in that situation. It really is a shocking state of affairs.

I heard what the Minister said earlier and I understand his view that it is right to leave all the negotiations to David Ford. However, the point was made by the MP and others that this impacts on the United Kingdom as a whole and on places other than Northern Ireland. I feel that David Ford, for all the efforts he has made, deserves a bit more support from British Ministers in talking to the political parties, Members of the Assembly and Ministers in the Northern Ireland Executive to try and reach a solution. It damages us all if people can move to Northern Ireland to store their ill gotten gains from anywhere else in the world and nothing can be done about it.

Lord Taylor of Holbeach: I thank the noble Baroness. She has raised an issue that I have identified already. I should reassure her that the Government are giving all the support to David Ford that he would ask for. However, in many ways the solution to this problem clearly lies with the people of Northern Ireland because it is the Northern Ireland Assembly that controls the Northern Ireland Executive. Indeed, this is long term an unacceptable state of affairs because of the very difficulties referred to by the noble Baroness, Lady

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Smith. We are well aware of it. That is why we have tabled order-making powers. As with other measures where we have not been able to get a legislative consent Motion, we are making every effort successfully to deliver a legislative consent Motion. We will then be able to ensure that these particular powers apply to Northern Ireland. There are dangers if they do not do so.

Baroness Smith of Basildon: I am grateful to the noble Lord for that explanation. I do not want to detain the House. Is he saying that he does not see any role or any responsibility for Home Office or Northern Ireland Ministers in trying to resolve this position?

Lord Taylor of Holbeach: My Lords, I started off by saying to the noble Baroness that we have given all the help that we believe will be helpful to getting a solution to this problem. We would do nothing other than do all we can to ensure that we get the legislative consent Motion which a number of measures under the Bill require to bring Northern Ireland fully into the provisions of the legislation that is being provided for in the Bill.

Motion agreed.

Motion on Amendments 21 to 23

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 21 to 23.

Motion agreed.

Motion on Amendment 24

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 24.

24: Insert the following new Clause—


Schedule (Extradition) (extradition) has effect.”

Lord Taylor of Holbeach: My Lords, I beg to move Amendment 24 and will speak to Amendments 25, 49, 136. I could use the wording that I have here, which is that I move that the House do agree with those amendments.

This group of amendments makes important changes to our extradition and deportation arrangements. Extradition and deportation are, of course, two entirely distinct legal processes and should not be confused. The fact that they are both being dealt with together in this group is simply for convenience.

Commons Amendments 24 and 136 amend the Extradition Act 2003 to provide for a new forum bar to extradition, to remove the Home Secretary’s obligation to consider human rights issues in extradition cases to non-European Union member states and to address several technical deficiencies in the 2003 Act in regard to Scottish devolution matters. Part 1 of the new schedule to be inserted into the Bill by Amendment 136 will amend the 2003 Act by requiring the judge at an

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extradition hearing to consider the issue of forum—that is, where the offence should be prosecuted. The Government’s decision to introduce a forum bar to extradition responds to the widespread concern within Parliament, as well as among the public more generally, that insufficient safeguards are currently built into cases of concurrent jurisdiction.

As noble Lords may be aware, there is an existing uncommenced forum provision in Schedule 13 to the Police and Justice Act 2006. This provision has not been commenced for good reason; simply put, we do not believe that it is fit for purpose. It would be cumbersome in practice and lead to wholly unacceptable delays in the extradition process. Instead, the Government’s forum amendments to the 2003 Act introduce a very carefully constructed provision, which has been designed to provide greater openness and scrutiny in relation to the question of where the most appropriate jurisdiction for trial is for those facing the possibility of extradition, while minimising delays as far as possible.

Our forum amendments allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice. In considering whether to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK and a list of other facts such as where the most harm occurred, the interests of any victims, the location of witnesses and the person’s connections with the UK.

In cases where the prosecutor has taken a formal decision not to prosecute in the UK, because there is insufficient admissible evidence available or because it is not in the public interest for such a prosecution to take place, a prosecutor’s certificate can be issued to that effect. This will prevent extradition being barred on forum grounds. The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request, who may be wanted for a very serious offence, does not escape prosecution altogether because a domestic prosecution is not possible, but the judge decides none the less to bar extradition on forum grounds. The amendments point to particular circumstances where a prosecutor’s certificate may be appropriate: namely, in cases where there is sensitive material which cannot be disclosed in open court because, for example, doing so would compromise national security or the investigation of terrorism or serious crime, or in cases where it is not in the public interest for such a prosecution to take place.

I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration will be given by the prosecutors to any decision about whether or not a person could be prosecuted in the UK. Under these new arrangements, prosecutors will know that they will be called upon to justify any decision in front of a judge in open court, not behind closed doors, as happens at the moment, and that any decision to issue a prosecutor’s certificate is judicially reviewable in the High Court.

Part 2 of the new schedule will transfer the discretion to consider final human rights representations from the Home Secretary to the courts. At present, the Home Secretary is obliged to consider human rights

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issues raised after a person has exhausted their appeal rights because she is a “public authority” for the purposes of the Human Rights Act 1998. By specifically preventing the Secretary of State considering whether extradition is compatible with the ECHR and transferring examination of such matters to the courts, the amendments will strike a better balance between two competing considerations: on the one hand, ensuring late human rights issues which are deserving of the court’s attention are properly considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last-minute, specious human rights points which can then be the subject of judicial review.

It is legitimate for the Home Secretary to play some role in the extradition process and that will remain the case. Ministers will still sign an extradition order for Part 2 countries: that is, those countries not covered by the European arrest warrant, to confirm that there are no statutory bars to extradition once it has been approved by the district judge. This covers issues such as the death penalty, ensuring people are tried only for the charges on which they have been extradited, onward extradition from a third country and transfers from the International Criminal Court. These are areas where diplomatic assurances are occasionally required and it is right that Ministers, rather than the courts, should continue to deal with these.

Part 3 of the new schedule makes provision in respect of Scottish extradition proceedings. In extradition proceedings in England and Wales, it is possible for a point of law to be appealed to the Supreme Court. In extradition proceedings in Scotland, the final court of appeal is the High Court of Justiciary. There is one exception to this in that there can be an appeal to the Supreme Court against the determination of a devolution issue raised in Scottish extradition proceedings. Devolution issues include questions as to whether the Scottish Ministers have acted in a way that is incompatible with the European Convention on Human Rights or EU law and so can arise in Scottish extradition proceedings. However, the 2003 Act does not take account of devolution issues in Scottish extradition proceedings being appealed to the Supreme Court. The Supreme Court has expressed concern that this could create problems in certain cases about the power to detain a person pending the outcome of an appeal to the Supreme Court and the time limit for extraditing a person following such an appeal.

The amendments provide that where the authority or territory that issued the extradition warrant seeks to appeal a devolution issue to the Supreme Court, the court has power to remand the person whose extradition is being sought in custody or on bail. Where the person is remanded in custody, the court may grant bail at a later date. The amendments ensure that the court has this power until the person is extradited or the extradition proceedings are discharged. They also set up the time limit for extraditing a person where a party to the proceedings seeks to appeal a devolution issue, raised in Scottish extradition proceedings, to the Supreme Court. Part 3 of the new schedule essentially ensures that a consistent approach is taken in the 2003 Act to appeals to the Supreme Court in extradition proceedings.

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9 pm

I turn to the matter of deportation in national security cases. Commons Amendments 25 and 49 limit the circumstances in which national-security-related deportations attract in-country rights of appeal on human rights grounds. The amendment would allow the Home Secretary to certify that removal pending the outcome of the substantive appeal would not be in breach of the appellant’s rights under the European Convention on Human Rights. The Home Secretary could make such a certificate on the grounds that temporary removal would not result in the individual facing a real risk of serious, irreversible harm, or that the underlying human rights claim was clearly unfounded. The certificate would render any in-country appeal against deportation out-of -country. The test of serious and irreversible harm is that used by the European Court of Human Rights when deciding when to issue a direction to suspend removal from a country prior to its substantive consideration of appeals against deportation or removal. Appellants will have a right to apply to the Special Immigration Appeals Commission for the certificate to be set aside. The commission would review such an application fairly but expeditiously.

The effect of a certificate made under this provision is obviously not to prevent an appeal. It is only to change the location of the appellant during that appeal. The change is not unprecedented. Out-of-country appeals already happen in relation to appeals against deportation which are certified under Section 94 of the Nationality, Immigration and Asylum Act 2002. Those certificates are issued when the underlying human rights claim is assessed to be “clearly unfounded”. As such the courts are well used to reviewing decisions that a human rights claim is clearly unfounded; and appeals are frequently pursued from overseas. It is the Government’s view that bringing an appeal from overseas does not of itself handicap the appellant’s ability to argue his or her case on appeal.

As national security deportation cases often involve human rights claims, where it is alleged individuals may face the risk of torture—or worse—on return, there are significant constraints on our ability to deport before an appeal is heard in the UK. The Government only ever take deportation action when they consider it lawful to do so and would not deport if they thought there was a real risk that the person would be tortured on return. Nevertheless, this amendment will support our ability to deport in future cases, in particular where individuals raise less fundamental human rights issues such as the right to a private life or where their human rights claim is unfounded. For example, a person may suffer no serious, irreversible harm in being away from their family for a few months while their substantive appeal is determined. The person will still have an appeal and if they win will be able to return to the UK. Having the individual out of the UK pending the appeal could be of real benefit in the context of the relatively small number of national security deportation cases.

This measure is one of a number of reforms being explored by the Home Office and the Ministry of Justice to support the Government’s ability to deport foreign national terrorists more quickly than at present.

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I hope that the House will agree that these are sensible changes that will enhance the fairness and transparency of our extradition procedures and the effectiveness of our deportation arrangements.

Amendment 24A (as an amendment to Commons Amendment 24)

Moved by Lord Rosser

24A: Line 2, at end insert—

“(1) The Secretary of State shall commission a review of this section, to consider in particular improvements to its functioning in relation to inter alia—

(a) the speed of extradition procedures;

(b) existing agreements with category 2 territories as designated under Part 2 of the Extradition Act 2003;

(c) future agreements with territories that would be designated under Part 2 of the 2003 Act.

(2) A review under this section must report to both Houses of Parliament no later than 3 years following enactment.”

Lord Rosser: My Lords, I shall speak also to the other government amendments in the group.

This part of the Bill is an example of how not to legislate. We have been faced with some 18 proposed new clauses and significant new provisions since the Bill’s Second Reading in this House. Some of the changes, such as Amendments 24 and 136 on extradition, which we are considering now, were introduced by the Government on the final day of the Committee stage in the other place, despite the Government having announced their intention last October to go down the road of a forum bar. The impact of this late and significant change to the Bill was then compounded by there being no scrutiny of these late changes on Report in the other place because they ran out of time. This is no way to make substantial changes to our extradition arrangements.

Almost inevitably, these amendments raise a number of issues. On the one hand, they introduce a forum bar, presumably with the purpose of devolving responsibility to the courts for a decision on whether to bar extradition on the basis of the interests of justice. On the other hand, the amendments grant the prosecution a veto over that decision if it decides not to bring a prosecution in the UK. The question then for the Government is to clarify what will change materially. If the purpose of the forum bar is to improve the transparency of decisions by allowing the courts discretion to determine whether extradition is in the interests of justice, rather than a decision negotiated and made behind closed doors, why is the prosecution being given what is in effect a veto?

Under the procedure set out in Commons Amendment 136, a judge would be prevented from deciding on a forum bar if prosecutors decided not to prosecute the individual in the UK on the basis of insufficient evidence or public interest, if they were concerned that a prosecution might risk the disclosure of sensitive material of a nature that might put at risk other cases, or on the basis of national security or our relationship with foreign partners. Those are certainly relevant considerations for any prosecution, but the purpose of a forum bar is to take these decisions away from the

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prosecution, as proposed new Section 19B actually requires the judge to consider a very specific list of matters when deciding whether the interests of justice test has been met, including,

“any belief of a prosecutor that the United Kingdom … is not the most appropriate jurisdiction in which”

the individual should be prosecuted, the availability of evidence for prosecution in the UK, and the desirability of the disclosure of evidence in UK courts. Why then are the Government including this prosecution veto? Is it because they do not trust the courts’ discretion over these matters? Is it because they are concerned that without the veto the introduction of a forum bar might undermine the extradition agreements negotiated with other territories on the basis that it would add an additional significant element of uncertainty over whether the Government could successfully seek extradition of an individual from the UK to face trial?

When the forum bar was proposed in 2006 as an amendment to the Police and Justice Bill, my noble and learned friend Lady Scotland of Asthal, then Home Office Minister, stated in a letter to noble Lords:

“It is also important to stress again that none of the UK’s bilateral treaties allow extradition to be refused on the basis of forum”.

She went on to say:

“The House should be in no doubt about the consequences of the proposed amendment. The UK’s judicial co-operation system with the rest of the world would be seriously damaged, the UK would be in immediate breach of a range of bilateral treaties and, perhaps most importantly, the international reputation of the UK would be significantly affected”.

As there could be more than one legal opinion on the issue, can the Minister say whether it is still the view of the Home Office that the introduction of the forum bar would put us in breach of existing treaties, as was the case in 2006? Can the Minister also say whether it is the belief of the Home Office that it will need to renegotiate any of our existing agreements as a result of the proposed changes to our extradition arrangements?

In 2010, the Government commissioned an independent review of the UK’s extradition arrangements by Sir Scott Baker and David Perry QC. It concluded that,

“forum bar provisions should not be implemented”,

on the basis that there was no clear evidence to suggest that the present arrangements were causing injustice. The review raised the concern that the introduction of a forum bar would create long delays in the extradition process and give rise to a whole host of satellite legislation, increasing both the cost and length of such processes, which would not be in the interests of justice, the victims or, least of all, the individual accused. We must ensure that the new procedures and arrangements do not lead to the sort of lengthy delays that we have seen in the cases of Gary McKinnon and Babar Ahmad. In that regard, one notes that under the new forum bar procedure, the prosecutor’s certificate effectively applying a veto is judicially reviewable, but only against the tests set out in the Bill.

This is why we propose, with our amendment to Amendment 24, that the Government should conduct a full review of the new forum bar procedure after no more than three years following enactment to assess

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how well it is or is not functioning and, specifically, what effect it has had on the speed and efficiency of extradition arrangements and decisions and the impact on our existing extradition agreements, as well as our ability to negotiate further agreements. That review must result in a report to both Houses of Parliament. Clearly, it is in the interest of all parties, and in our national interest, that we have effective and just extradition procedures that ensure that criminals cannot use the UK as a safe haven and equally cannot evade facing justice for crimes committed in the UK by fleeing abroad.

I now refer to Commons Amendment 25 which concerns deportation. It seeks to speed up the deportation process and to avoid a succession of appeals that suspend deportation and undermine the purpose of the decision to deport an individual on grounds of national security. The new clause would allow the Secretary of State to remove the in-country right of appeal against the deportation on national security grounds where she can certify that either the individual would not face the risk of serious irreversible harm or where the whole or part of any human rights claim made by the person is clearly unfounded. That raises a couple of points in relation to this test. As the Minister has said, the test of serious irreversible harm is one that was established in a European Court of Human Rights judgment. However, the other test, that any human rights claim is “clearly unfounded”, is less clear. Can the Minister explain what exactly the Government mean by this? What sort of claims may fall within this definition?

In addition, the new clause provides,

“the grounds upon which a certificate”—

that is a certificate that gives no in-country right of appeal—

“may be given under subsection (2B) include (in particular)”.

In other words, it allows the Secretary of State to issue a certificate against suspensive deportation on grounds that are not exclusive to the two tests relating to serious irreversible harm or whole or part of any human rights claim being clearly unfounded. That must be the inference of the words “in particular”—that there is something in addition to what is listed. It would be helpful if the Minister could clarify what other grounds could be used by the Secretary of State in addition to the two outlined in the Commons amendment and whether this means that suspensive appeal rights could be prevented even where the individual would face the risk of serious irreversible harm because apparently there might be other undisclosed reasons on which it could be declined.

There are also other questions on the practicalities of this proposal. Will the Government be taking steps to ensure that an individual so deported will physically be able to appeal and will not be prevented from doing so by the authorities in the country concerned? Will the Government be advising a person about to be deported of their right of appeal and how and to whom such an appeal should be made? Will the Government be advising a person appealing how legal representation can or will be arranged, and will they ensure that an individual appealing will not be stopped from communicating with their legal representative?

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I hope that the Minister will respond fully to the points I have raised on the four Commons amendments and that the Government will give serious consideration to our Amendment 24A and the proposal for a review of this new procedure on extradition,

“no later than 3 years following enactment”,

when there will have been sufficient time to see how well or otherwise it is working. I beg to move.

9.15 pm

Lord Lloyd of Berwick: My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.

When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.

I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.

I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the

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two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:

“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.

That conclusion should have been accepted by the Government but it has not been.

That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:

“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—

in other words, against a forum bar. The report continues:

“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.

One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.

Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.

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What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.

I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.

Lord Dubs: My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.

Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.

It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.

The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by

25 Mar 2013 : Column 897

Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.

9.30 pm

I will say something about the European arrest warrant. There are some flaws in it but fundamentally it is one way of bringing to justice people whom we as a country want to bring to justice or other European countries want to bring to justice. The very thought that the Government might abolish our participation in the European arrest warrant is a nightmare scenario. I hope that the Government will stop this approach because it is widely accepted that the European arrest warrant has played a very important part in bringing criminals to justice, whatever the faults in the system.

The amendments standing in my name are intended to introduce a proper forum bar. I very much agree with the arguments put by my noble friend on the Front Bench and the noble and learned Lord, Lord Lloyd of Berwick. My amendments go a bit further. Where most of the alleged conduct took place in the United Kingdom, there would be a presumption against extradition unless it could be established, based on a wide range of relevant factors, that the wider interests of justice demanded it. Such a decision would be taken by an impartial judge in open court. It seems to me that what should be taken into account—and this is not a limited list—would represent good procedures and a sensible approach by the courts.

I will give one or two examples from my amendments:

“Matters relevant to the interests of justice include but are not limited to”—

I will not go through the whole list—

“the extent and place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur … the interests of any victims of the extradition offence … the availability of evidence necessary for a fair trial in the United Kingdom and in jurisdictions outside the United Kingdom … nationality, place of habitual residence and other connections with the United Kingdom”,

of the person to be extradited. If one takes these and the other considerations in the amendment into account, one would have a much better approach than the one that the Government have put forward.

Earlier the Minister said that he thought that all this would be done openly and there would not be any secrecy involved. I cannot put that to the test in the procedures we have before us. My understanding is that there might well be situations where the courts would operate in secret. My fear is that we have not got that properly under control. For example, if we did not have a forum bar, the UK prosecution would not be able to require disclosure of foreign secret evidence. If we had a forum bar, we could demand that as a condition of the extradition, and that would be an added way of having openness and secrecy in our procedures. The Minister said that there would be no secrecy so there is a bit of a dispute as to the facts here; perhaps the Minister could clarify that. For example, as it stands, if the United States refused to share evidence, the United States itself could guarantee

25 Mar 2013 : Column 898

that extradition to the United States would happen. This does not seem how it ought to be and it does not give our courts the proper authority to decide.

I rest my case on the proposition that there should be a presumption against extradition unless it would be in the interests of justice that such extraditions should take place. That is the basis of my amendments and I hope that the Government will either take the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should delay discussing this until we can do it properly, or move towards accepting the amendments that I am putting forward.

Lord Taylor of Holbeach: My Lords, despite the criticism of noble Lords about the quality of debate that we might have on this issue, I feel that we have had an opportunity to discuss the matter in some depth. It forms part of the Bill that is before us as a result of the Commons amendments. It is our responsibility to discuss the Bill and it is my responsibility to encourage noble Lords to see these particular amendments through. I believe that they are in the interests of good governance and in the interests of this country. The measures we have introduced on the forum will make the extradition process more open and transparent. Making the courts the sole body to consider human rights issues, which has not been discussed much but is a very important change, will ensure that people are not able to abuse the system and delay extradition endlessly by raising specious last-minute human rights points which can then be the subject of judicial review. Together, our proposals will improve our extradition arrangements and, in my view, make them fairer.

The noble Lord, Lord Rosser, has asked my right honourable friend the Home Secretary to commission a review of our proposals and their impact on the speed of extradition procedures, as well as on our current and future extradition relations. This is the substance of his Amendment 24A. As the noble Lord will be aware, we commissioned a review by Sir Scott Baker. His report, referred to extensively by the noble and learned Lord, Lord Berwick, was a comprehensive and detailed analysis of our extradition arrangements. The findings of Sir Scott Baker’s panel were very carefully considered by the Government. He has helped us to come to a view about the changes that needed to be made to our extradition procedures, including those we have brought forward in this Bill, with a view to not only improving those procedures but addressing public and parliamentary concern about their fairness. I can assure the noble Lord that once the new forum bar is operating, these arrangements, together with other changes to the Extradition Act, will indeed be subject to the normal post-legislative scrutiny process, which was introduced by the previous Administration, three to five years after Royal Assent.

I now turn to Amendments 136A to 136C in the name of the noble Lord, Lord Dubs. As I have already said, it is important to improve the protections offered to individuals under the Extradition Act. That is why we have introduced our own forum provisions. However, the interests of justice demand that our extradition arrangements are properly balanced to ensure that, while there must be proper safeguards in place for

25 Mar 2013 : Column 899

those subject to extradition, our arrangements do not allow a person to escape justice altogether. Therefore it is important that the test for whether extradition should be barred on forum grounds contains no implied presumption against extradition, even where it is clear that no prosecution is possible or likely in the UK. If the Crown Prosecution Service or another prosecutorial body decides after proper consideration—importantly, that will now be tested in open court and I am pleased that the noble Lord welcomes that position—that a domestic prosecution cannot take place, extraditions should not be barred on forum grounds. Justice will otherwise not be done and potential victims will see their assailant, in some cases potentially a suspected terrorist, walk away scot free.

There has been concern from the noble Lord, Lord Dubs, about whether we can ensure that the bar does not refuse to provide any information—in other words, what will happen in the absence of information? This is not the case under our treaties and, under the Extradition Act 2003, a requesting state must provide certain information. That is not being changed by these arrangements.

Amendments 136A and 136B propose a non-exhaustive list of factors for a judge to consider when deciding whether extradition is in the interests of justice. Our strong preference is for an exhaustive list, so long as it is the right list, in order to prevent unnecessary delays in the extradition process arising from individuals raising irrelevant considerations in front of the judge. We believe that the strength of connection to the UK is a relevant factor—I am sure that noble Lords will agree—and we have included it for the judge to consider among others. However, we do not believe that nationality should be identified as a factor in its own right. The UK has historically not had a bar on extraditing its own nationals, which is reflected in all current extradition treaties. There is no intention to introduce such a bar.

Amendment 136C seeks to strike out the provisions in Schedule 19 transferring responsibility for determining human rights representations from the Home Secretary to the courts. The determination of human rights issues is properly a matter for the courts. The courts already consider such issues during the extradition process. This change, which was recommended by Sir Scott Baker in his review, will ensure that human rights issues arising late in the process are properly considered by the courts while also ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising, at the last minute, specious human rights points with the Home Secretary that can then be subject to judicial review.

I shall answer some specific questions raised by the noble Lord, Lord Rosser. He asked what the purpose was of the prosecutor’s certificate. The purpose of the forum bar is to ensure that prosecutors give due consideration to whether a prosecution should take place in the UK. That does not always happen at the moment. Our proposals ensure that a decision on forum is either taken in open court or, in a case where a certificate is issued, in the High Court following any judicial review.

25 Mar 2013 : Column 900

The noble Lord also asked for a definition of clearly unfounded human rights claims. The “clearly unfounded” test is well established as it is already set out in Section 94 of the Nationality, Immigration and Asylum Act 2002. An established body of case law now exists around the term, and I shall now evidence some of it: appeals that frivolously cite Article 2 or 3, or that simply repeat arguments previously considered and dismissed on appeal where there has been no significant change of circumstances.

Both the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Lloyd, asked about treaty breach. I assure noble Lords that the legal advice that I have received is that our forum bar proposals are consistent with our treaty obligations and, for that matter, with the European arrest warrant framework decision.

Lord Lloyd of Berwick: I hope that the Minister will forgive me but this is an important matter. I know that it would be exceptional but would he make that advice available to the House by putting it in the Library?

Lord Taylor of Holbeach: I do not think that it is the practice of Ministers to make legal advice available.

Lord Lloyd of Berwick: It is not practice, but in this instance perhaps the Minister could do so.

Lord Taylor of Holbeach: I am afraid that I have to follow practice in this respect because I believe that advice given by law officers to the Government is always considered to be confidential. However, I have reported the substance of that advice to the House in this debate, and I hope that the noble and learned Lord will accept it.

I turn to the issue that the noble and learned Lord raised right at the beginning of our debate, before we even started considering Commons amendments. I understand his concerns about this matter but, as I made clear in my Statement to the House on 16 October last year in response to the review by Sir Scott Baker of UK extradition procedures, the Government wished to legislate as quickly as possible to introduce provisions on forum. We made that clear at the time.

The Government have worked hard, taking into account the views of prosecutors, to develop an approach which will be acceptable to Parliament and the public. The Official Opposition gave a relative welcome to these proposals when they were tabled in the other place, which I think shows broad acceptance that we have got these proposals right. If we were to remove these proposals from the Bill now, it would be a year or more before those facing extradition would see the benefit of this new and important safeguard. In light of these comments and the response I have given to this debate, I respectfully ask the noble Lord to withdraw his amendment and all noble Lords to support Commons Amendments 24, 25, 49 and 136.

Lord Rosser: My Lords, a number of questions and points on the impact of the forum were asked by the noble and learned Lord, Lord Lloyd of Berwick, in his

25 Mar 2013 : Column 901

powerful speech, by my noble friend Lord Dubs in his significant contribution and by me. I am not sure that they have all been fully answered. The case has been made that the proposed change in extradition arrangements will not speed up the process but will work the other way. I do not think that point has been fully addressed either.

This major change in our extradition arrangements is being taken through without full and proper consideration and without Parliament having the opportunity to test and challenge the case for the Government’s proposals or to reflect on the Government’s responses. Parliament is, frankly, being effectively bypassed on this important issue by the way that the Government have dealt with it and the lack of time they have given in tabling their amendments. We have not had the opportunity of considering the amendments in depth. I am afraid that is the reality; I do not honestly think the Minister can suggest otherwise.

I do not think all my questions on the deportation amendments have been answered either. I hope that, at least, the Minister will respond in writing to the unanswered questions and points raised on extradition and deportation in this brief debate. I ask him seriously to consider doing that because he has not responded to all the questions and points that have been raised, albeit that he has, I accept, responded to some of them. We note the Government’s position on our amendment. They have indicated that there will be scrutiny of how the arrangements work, albeit that they are not prepared to agree to an amendment to the Bill. However, I do not intend to pursue that matter any further.

Lord Taylor of Holbeach: Before the noble Lord sits down, he will know that it is always my wish to make sure that the House is informed on matters that may have been raised in debate. I undertake to write to him on these matters and will copy in other noble Lords who spoke in this debate.

Just to clarify the point I made about legal advice, because I do not want to get this wrong, I was correct in what I said. It is not the practice to publish legal advice, nor to confirm or deny that law officers’ advice has been sought in any case. These are matters of legal professional privilege and, as a non-lawyer, I defer to that privilege.

Lord Rosser: I beg leave to withdraw the amendment.

Amendment 24A (as an amendment to the Motion on Amendment 24) withdrawn.

Amendment 24B (as an amendment to the Motion on Amendment 24)

Moved by Lord Lloyd of Berwick

Leave out “agree” and insert “disagree”.

Lord Lloyd of Berwick: My Lords, the House will be glad to hear that I do not wish to add anything to what I have already said. I hope that in some further reply, written or otherwise, the Minister will at least

25 Mar 2013 : Column 902

answer some of my questions on the Scott Baker report, which were of some importance. Having said that, I shall not press the amendment.

Amendment 24B, as an amendment to the Motion on Amendment 24, withdrawn.

Motion agreed.

Motion on Amendments 25 to 37

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 25 to 37.

Motion agreed.

Motion on Amendment 38

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 38.

Amendments 38A and 38B, as amendments to Commons Amendment 38, not moved.

Motion agreed.

Motion on Amendments 39 to 50

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 39 to 50.

Motion agreed.

Motion on Amendment 51

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 51.

51: Page 44, line 25, leave out subsection (17)

Lord Taylor of Holbeach: My Lords, I beg to move the privilege amendment.

Motion agreed.

Motion on Amendments 52 to 130

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 52 to 130.

Motion agreed.

Motion on Amendment 131

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 131.

131: Insert the following new Schedule—



1 The British Broadcasting Corporation.

2 Sianel Pedwar Cymru.

25 Mar 2013 : Column 903

3 The holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence.

Special interest titles

4 A person who publishes a title that—

(a) relates to a particular pastime, hobby, trade, business, industry or profession, and

(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.

Scientific or academic journals

5 A person who publishes a scientific or academic journal that only contains news-related material on an incidental basis that is relevant to the scientific or academic content.

Public bodies and charities

6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.

(2) “Public body” means a person or body whose functions are of a public nature.

Company news publications etc

7 A person who publishes a newsletter, circular or other document which—

(a) relates to a business carried on by the person, and

(b) only contains news-related material on an incidental basis that is relevant to the person’s business.

Book publishers

8 (1) A person who is the publisher of a book.

(2) “Book” does not include any title published on a periodic basis with substantially different content.”

Amendments 131A and 131B, as amendments to Commons Amendment 131, not moved.

Amendment 131BA (as an amendment to Commons Amendment 131)

Moved by Lord Taylor of Holbeach

131BA: Line 29, at end insert—

Small-scale blogs

7A A person who publishes a small-scale blog.”

Amendment 131BA, as an amendment to Commons Amendment 131, agreed.

Amendments 131C to 131F, as amendments to Commons Amendment 131, not moved.

Motion, on Amendment 131 as amended, agreed.

Motion on Amendment 132

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 132.

Motion agreed.

Motion on Amendment 133

Moved by Lord McNally

That this House do agree with the Commons in their Amendment 133.

133: Page 269, line 16, leave out paragraph 29

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Lord McNally: The Lord Speaker will be pleased to know that it gets a lot clearer from now on.

I beg to move that this House do now agree with the Commons in their Amendment 133. This amendment removes Part 7 of Schedule 15, which would have required contracts between the Secretary of State and probation trusts to place an obligation on trusts to make appropriate provision for the delivery of services for female offenders. This included making provision for women to participate in unpaid work and rehabilitative programmes with their particular needs in mind. As noble Lords will recall, Part 7 of Schedule 15 was inserted into the Bill at Third Reading when the House agreed an amendment in the name of the noble and learned Lord, Lord Woolf. With his customary courtesy, the noble and learned Lord, Lord Woolf, has explained to me that family and religious observations have meant that he cannot be with us tonight, which I fully understand, although I see some familiar faces around the Chamber of noble Lords who are involved in this matter.

I know that the Commons’ decision to remove Part 7 of Schedule 15 will have been a disappointment to many in this House. As the high quality and impassioned contributions to the earlier debates on this issue showed, addressing the needs of female offenders is a key priority for many here. I therefore reaffirm that the Government are committed to addressing the factors associated with women’s offending, and to taking a different approach where there is a need to differentiate provision for female offenders. We recognise that we will rehabilitate female offenders and enable them to lead positive and productive lives only if we a take a different approach where it is required.

10 pm

I have on more than one occasion promised that the Government would publish their key priorities for female offenders. I am therefore delighted to say that a document setting out our key priorities for female offenders was published last Friday. These priorities reflect the Government’s wider proposals to reform rehabilitation, and also the review of the women’s prison estate announced on 10 January. They are aimed at ensuring that there are credible, robust community sentencing options available for sentencers; gender-specific services for female offenders in the community, where appropriate; tailoring of the women’s custodial estate; and rehabilitation reforms to support better life management and reduce women’s reoffending.

We have also announced the creation of a new advisory board on female offenders. It will be chaired by the Minister for Victims and the Courts, and will bring together key stakeholders, criminal justice partners and senior officials from across government to support her in delivering these priorities. The need for strong, visible leadership is something that many noble Lords have called for. The advisory board will provide invaluable expertise and challenge as we take forward work on female offenders within the rapidly changing landscape.

On Commons Amendment 133, we fully understand and are sympathetic to the concerns that prompted the noble and learned Lord, Lord Woolf, to bring forward his amendment at Third Reading. However,

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it remains the case that we do not believe that it is either necessary or helpful, and I will take a few moments to explain why. As noble Lords will be aware, the Government have also recently published their proposals for taking forward the next steps of the rehabilitation revolution. The consultation document,

Transforming Rehabilitation



evolution in the





Manage O


, sets out our proposals to reform the management and rehabilitation of offenders in the community through a new focus on life management and mentoring support for offenders. Fundamentally, offenders with complex problems and chaotic lifestyles need support to turn their lives around, combined with proper punishment.

Included in the consultation were proposals to complete the provision of a wide range of services and to introduce payment by results, so that in future the taxpayer will pay for those services that demonstrate a reduction in reoffending. National commissioning would replace commissioning by probation trusts. We intend to open up rehabilitative services to a wide range of new providers in the private and voluntary sectors who will bring their creativity and innovation to bear on this pressing problem, and who will be paid by results to drive down reoffending. The close work between probation trusts and the voluntary sector women’s community services can be seen as a precursor of this approach. The amendment agreed in this House at Third Reading failed to recognise this new landscape for the delivery of probation services.

I assure noble Lords that, in taking forward these reforms, we are very aware of the particular needs and priorities that are relevant to services for female offenders, and that we will ensure that these are addressed within our overall approach. Our consultation document specifically asked for views on how we can use our new commissioning model, including payment by results, to ensure better outcomes for female offenders and for others with complex needs or protected characteristics. It is also worth noting that our rehabilitation reforms will extend the provision of rehabilitation services to offenders released from custodial sentences of less than 12 months, who currently do not qualify for statutory licence or rehabilitation provision. Proportionately more women than men are serving short sentences, so they in particular will benefit from this element of the reforms.

I can reassure noble Lords that the removal of Part 7 of Schedule 15 from the Bill will not undermine the delivery of appropriate services for female offenders. Our newly published key strategic priorities make clear that the Government are committed to ensuring appropriate provision for female offenders, whether in custody or in the community. As I have mentioned, the Secretary of State for Justice has asked officials to undertake a review of custodial arrangements for women. He recognises that female offenders have particular needs, and that the women’s prison estate should be organised as effectively as possible to meet gender specific requirements while also delivering best value for the public.

There are other public commitments, too, which apply to providers commissioned by the Secretary of State to deliver offender management services. Indeed, one of the actions under objective 2 of the Ministry of Justice’s equalities objectives is to ensure the,

25 Mar 2013 : Column 906

“provision of gender-specific community services to improve support for vulnerable women in the criminal justice system”.

Probation trusts are also required by the National Offender Management Service Commissioning Intentions document, to demonstrate how they will ensure the appropriate provision of women’s services. All probation trusts have met this year’s requirement to provide appropriate provision for women, including new and innovative ways of working with women.

Noble Lords will be aware that in the last few years the Government have been investing in the development of voluntary sector-led women’s community services. NOMS has provided an additional £3.78 million funding via probation trusts to support 31 of these centres in the current financial year. This £3.78 million has now been embedded in the NOMS community budget for 2013-14, and has been ring-fenced to enable probation trusts to commission the delivery of enhanced services for female offenders. Probation trusts are planning a range of new partnerships with the voluntary sector in the coming year, including opening new women’s community services and the delivery of a new bespoke training programme for women. This inevitably means that some women’s services may find that they receive less funding in the coming year. However, at this time of financial constraint, the commitment to provide £3.78 million to trusts for the provision of women’s services is a strong indication of the priority the Government give to the needs of female offenders.

A further £300,000 is being invested in women’s services by trusts, which I find very encouraging indeed. I am a strong advocate of the women’s centre approach, which provides practical support for women in addressing their many needs, whether it be housing, domestic violence, substance misuse or a range of other issues. These centres are located in the centre of our communities and provide a positive, flexible environment to help vulnerable women sort out their often troubled lives. When I visited the Minerva women’s centre last year, I was very impressed by the number of women that I met who had first come to the centre as clients, sometimes very reluctantly, but then remained at the centre to support other women as mentors and helpers. This is exactly the sort of benign circle that we want to encourage.

I hope that I have reassured the House that the Government remain committed to ensuring the provision of appropriate services that will address the specific needs of female offenders, and that this is an integral part of our reform programme. For these reasons and in the context of the Government’s wider plans to transform rehabilitation, we feel that Part 7 of Schedule 15 is neither necessary nor helpful. In the circumstances, I hope that the House will be reassured on the points that I have made and will agree with Commons Amendment 133 and reject Amendment 133A in the name of the noble Lord, Lord Ramsbotham.

Amendment 133A (as an amendment to the Motion on Amendment 133)

Moved by Lord Ramsbotham

Leave out “agree” and insert “disagree”.

25 Mar 2013 : Column 907

Lord Ramsbotham: My Lords, in her foreword to the Strategic Objectives for Female Offenders published last Friday, Helen Grant, the Ministry of Justice Minister responsible for women, wrote:

“The issue of women in prisons is a deeply emotive one, in which there is very genuine interest from Parliamentary colleagues”.

I am sure that the noble Lord, as a member of the Government who purport to be as genuinely interested in the issue of women’s justice as Helen Grant professes, will understand why I say that a number of genuinely interested colleagues are deeply upset that this amendment is coming up at such a late hour, because understandably they and others have had to leave the House. Tragically, this is an all-too-familiar story where women’s justice is concerned, about which we should all feel ashamed.

If the Committee in the other place was genuinely interested, I cannot imagine how it accepted, without debate, the Minister’s assertion that the amendment successfully introduced at Third Reading in this House by my noble and learned friend Lord Woolf—sadly, he cannot be here tonight, as noble Lords have heard—was unnecessary. The amendment sought to obtain much needed statutory protection of measures to ensure that the distinct needs of women offenders were prioritised and met. It was said to be unnecessary because it specifically mentioned probation trusts and, because probation was under review, it did not make sense to legislate on probation provision, and because the Government were already committed to working on women’s provision, the legislation was not needed. The genuinely interested Committee threw out my noble and learned friend’s amendment, denying other genuinely interested colleagues any opportunity of considering it at Report. What a message such treatment sends to those who are encouraged to believe that the Government are genuinely interested in the position of women in the criminal justice system.

If this was the first occasion on which similar dismissal had been the fate of proposals concerning the specific needs of women offenders, it could perhaps be more easily understood. The point about probation is a semantic quibble because, whatever the outcome of the review, someone will be responsible for the provision of services to female offenders. But the point about legislation is important, because the amendment is an attempt to ensure that consistent and continuous action is taken by successive Ministers, rather than a continuation of past practice, which I can best characterise as being seven times bitten and, understandably, eight times shy.

The strategic direction announced by the Minister includes sections on enhanced provision in the community and transforming rehabilitation, with at its heart an advisory board. In principle, I welcome strategic direction, because a strategy is a single aim uniting the contributions of all those concerned. But as this one contains nothing new and is noticeably short on detail, I can best describe it as pretty thin wine. While not against advisory boards per se, I am not happy that the Minister should put so much hope in this one, because boards do not provide leadership or take positive action, and positive action, not yet more advice, is what is so badly needed.

25 Mar 2013 : Column 908

The Minister said that the board had been convened,

“to develop polices to tackle female re-offending, to help women into gainful employment and safe environments, and off the ‘conveyor belt to crime’”.

Of course, nobody could be against such aims, but I am deeply cynical about how they will be implemented and overseen, in view of bitter experiences in the past. Over the past 16 years, I have heard much the same from a succession of Home and Justice Secretaries and Prison and Women’s Ministers and I have seen a plethora of policy, advisory and women’s issues boards set up to develop policies and to help women off the “conveyor belt to crime”, after recommendations made in two thematic reports of mine when I was Chief Inspector of Prisons, a report by the Prison Reform Trust, three reports by the Fawcett Society and finally the report by the noble Baroness, Lady Corston, only for them to disappear without trace. I note that, like its predecessors, this board is expected to,

“take a creative, innovative look at the scope … for improved sentencing options”,

as well as,

“designing the system to ensure that women’s needs and priorities are recognised in the provision of services in the community and through-the-gate of prison”,

and working with partners within and outside the criminal justice system,

“to ensure that the needs and profile of female offenders are recognised and understood”,

while also promoting “community sentencing options”.

Here I make no apologies for repeating what I have said time and again in this House: history, and particularly recent history, proves that nothing will happen until and unless some named person is made responsible and accountable to a Minister for making it happen. As nobody has been appointed in the case of women, virtually nothing has happened.

10.15 pm

Ever since I became involved with the criminal justice system, I have been amazed that Ministers seem so unwilling to look at facts when trying to reason why their good intentions are not realised. If they worked in business, a hospital, a school or local government, they would know that named individuals are responsible and accountable for separate departments, so why, unlike every other operational organisation throughout the world as far as I can discover, do they tolerate continuous failure, for which they can call no one to account, caused in large measure by the almost complete absence of any named individual responsible and accountable for each type of offender in the National Offender Management Service, particularly women, a discrete group with distinct characteristics and needs? If they looked, they would be struck immediately by the marked difference between the consistency and improvement in the high security prisons, under their own director, compared with the remainder, and the way in which the position of children has been transformed by a Youth Justice Board under its own responsible and accountable chairman.

This dreadful track record explains why my noble and learned friend, I and many others seek legislation. In the absence of anyone responsible and accountable

25 Mar 2013 : Column 909

for making consistent improvement, we despair of progress being made and any momentum generated being maintained. Ministers, however well intentioned, come and go. While responsible and accountable to Parliament, they have countless other ministerial, parliamentary and constituency tasks and simply do not have the required time to provide 24/7 oversight of any single part of their ministerial portfolio. Oversight can be provided only by someone responsible and accountable to them, aided by advisory boards or whatever. I challenge anyone to disprove that the one common denominator behind the failure of every previous good intention for improving the position of women is the lack of anyone responsible and accountable to the Minister for implementing it. I would hate to see this one, however thin, go the same way. That is why I disagree with the Commons overturning my noble and learned friend’s amendment.

I have three questions for the Minister. First, why does he not accept the need to appoint a named official to be responsible and accountable to Ministers for women in the criminal justice system? I note that, on 3 October 2012, Sadiq Khan MP, the shadow Justice Minister, announced that Labour would set up a women’s justice board, bringing together central government, local councils, police, probation and social services to tackle female offending, modelled on the Youth Justice Board. When I asked him about what appeared to be a damascene conversion of his party line, bearing in mind how many of his predecessors had vetoed that idea when put forward by the Prison Reform Trust and many others, including me, he said that, coming in as an outsider, he had looked afresh at all the evidence and that its need stood out. I welcome him warmly to the club, as I hope to do the present ministerial team.

Secondly, can the Minister tell the House why, without statutory provision, it should be confident that what the Minister has outlined will come to pass when so many previous but similar intentions have failed? Helen Grant, having recognised the genuine interest of parliamentary colleagues in both Houses and the importance of keeping people informed about what the Government are doing for female offenders, says that she will consider what more she should do, going forward, to communicate with stakeholders and others with an interest in female offenders. I would like to recommend one thing that she could do, which is to undertake that either the Justice Minister or the Minister responsible for women’s justice will make an annual statement to Parliament about progress with the strategy, which will be debated on the Floor of both Houses. Will the Minister give an undertaking that annual statements will be made, or at least considered, and an announcement about them made during the further passage of this Bill? I beg to move.

Baroness Corston: My Lords, I support Amendment 133A in the name of the noble Lord, Lord Ramsbotham. He suggested that my report had sunk without trace. Perhaps I may reassure him that I have not. Having waited over a year from the day when the noble Lord, Lord McNally, promised this House that we would have a strategy for women offenders which would be published “quite shortly”,

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found the statement released last week was acutely depressing. It was thin and took us back to the days of the women’s offending reduction programme. It is extraordinary that this can happen, particularly as I know that the noble Lord, Lord McNally, and his parliamentary colleague Helen Grant MP have been visiting women’s centres up and down the country and must have got the same message.

Why has nobody recognised the plight of women at risk of offending? It was reported in the papers that the women’s prison population had gone down by 400 since the previous Government started implementing my report. Given that the women’s prison population is, at any one time, just under 5,000, that is a proportionate reduction that the Minister might be quite proud of if it happened in the male estate. Why has it happened? It has happened because of the focus on women at risk. Magistrates’ courts up and down the country now do this work but there is no reference to it whatever. Will the Government please stop talking about payment by results? I have been in Parliament for 21 years and I have never known a Government who wanted payment without results.

Women’s centres, which work with women offenders who have been sent there by the court and women at risk, can have reoffending rates as low as 10%. There is no prison system in the world that can boast reoffending rates of 10% and yet these centres are now writing to me to say that their funding is being cut and they are finding it hard to cope. The £3.78 million, to which the noble Lord, Lord McNally, referred, is all well and good but probation trusts are, as I understand it from correspondence I have had with Helen Grant, being given the job of ensuring that that funding is spread. A smaller pot of money is being spread further so centres like Anawim in Birmingham—I challenge anyone visiting that centre not to be profoundly impressed with the work it does with very troubled women—are finding it difficult to cope. A lot of the women about whom constituents visit Members of Parliament in their advice surgeries are ones whose chaotic lifestyles lead to prison. Work done with them saves local authorities a lot of money.

I want to contrast what is happening with this advisory board with what happened before. We had a Minister, Maria Eagle, who regularly made Written Ministerial Statements on progress. That went alongside a very detailed strategy that was a thick document, not the two pages—it may have been three but it certainly was not more—that we had last week. This advisory board will work only if it has absolute overall strategic direction and a multidisciplinary team of civil servants working alongside it. I do not see that happening.

When I hear the Government say, “We are implementing Corston”, which I do not say out of arrogance but I gather that within the Ministry of Justice I am a noun and a verb, I feel my blood boil because it is not true. This Government do not understand the situation with regard to women generally, what gender-specific services are and what kind of priority should be given. If they did, it would not have taken one year and 10 days to publish what is a thin, mean document.

A huge opportunity has been missed because you cannot reinvent a broken wheel. Centres such as Anawim

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write to me saying, “You know what work we do and we are now finding that we are turning away women who lead chaotic lifestyles and are at risk of losing their children”. This is alongside a Bill under which we are speeding up the adoption process. What happens is that instead of helping these women who are at risk of offending to turn their lives around and keep their children, we do nothing for them and let someone else adopt their children.

Lord Hurd of Westwell: My Lords, I must add a word of praise for the two speeches that we have just listened to and a word of exhortation to the Minister to pursue more effectively the lines that he set out. We can welcome the steps that he outlined, so far as we understand them on first reading. Whether those steps will be taken or in some way accelerated by the fact that we are having this debate and passed an amendment at an earlier stage, I do not know. However, in attempting to make his case, I thought that the Minister’s heart was not in it. He did not really explain why my noble and learned friend’s amendment would be unhelpful. He took some pride in saying that life has moved on—meaning that the Government have moved a step or two—and that the amendment was therefore out of date. However, the Minister has not been too chary in the early part of our proceedings today in moving government amendments that updated the Bill. It would not be beyond the wit of his department to commission an amendment that would have filled any gap and brought us up to date on the Government’s latest actions, which, I understand, came to a head last Friday.

This is a black hole in our criminal justice system. In my time as Home Secretary, I visited a good many prisons, and I have visited several in the past year or so through my involvement with the Prison Reform Trust. Nothing is more desponding, gloomy or soul-destroying than a visit to a women’s prison. I do not know quite why, and I have not sorted out the logic of it in my mind, but there is something particularly disagreeable and unnatural—awful, really—about a woman in prison. When you consider the kind of offences in which women are characteristically involved, particularly those concerned with drugs, you are filled with a feeling of pity and anger that this defect in our criminal justice system should yawn so widely and take so long to deal with.

The noble Baroness, Lady Corston, is of course to be congratulated on her report, which has helped to move things on, as has the tireless work of the noble Lord, Lord Ramsbotham. They have illustrated clearly in their powerful speeches the defect. What is lacking is accountability and a person or persons whose responsibility it is to put this wrong right. Short of that, I fear that we are just being subjected to an amiable, and certainly sincere, smokescreen. They have proved beyond doubt that that is not sufficient. This has drifted on year after year, as the noble Lord, Lord Ramsbotham, said, and now we are offered not a statute, or a promise of legislation, but an advisory board. There is an advisory board sitting in this Chamber, but unfortunately its advice is not being taken.

I do not know whether the noble Lord, Lord Ramsbotham, intends to press his amendment to a vote. I am sure that the Minister does not need to be

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told this, but I would ask him to take away and report to his Secretary of State and to all concerned in the Ministry of Justice the strong feeling in this House that there is a black hole in our arrangements and that we look to this Government to put it right.

10.30 pm

Baroness Howe of Idlicote: My Lords, I rise to support the amendment moved by my noble friend Lord Ramsbotham. I believe that what happened in the Commons, the way in which this whole area was tossed aside and not debated at all, was disgraceful. I believe that the very least that the Government can do is to answer the three questions that my noble friend has put to the Minister. I would lay the greatest emphasis on having an annual report on progress that is made in the whole of this area.

I am especially concerned about the differences in the treatment of men and women for two reasons. First, there is a distinct difference in the backgrounds of women who are in prison for very short sentences. As we have heard, such sentences account for the vast majority of women—and indeed men—in prison. As one example, 5% of the prison population are women, and yet 31% of self-harmers in prison are women. The Government should receive full marks for starting to outline, at last, these plans, as we have begun to get a picture of what we hope will happen in the future. I am very supportive of these plans as there are so many women in prison who should not be there, certainly not to serve short sentences as is currently the case.

Secondly, and above all, these women should not be in prison because of the effect that it is having on their families. How many of those families will find their own way into prison as a result of having had their family broken up, having been taken into care or placed with relatives and, above all, having lost that very particular relationship between mother and child? I believe that that is the worst aspect of all. How many facts are we given about the number of families who are repeatedly in and out of prison in a continual spiral of offending?

Good luck to the Government with their plans, but please let us have a report on what is happening, and let us have real progress. Quite apart from the women concerned, I believe that we will find that this kind of treatment could be as applicable to men in our prison service. We need a whole overview of what goes on.

Baroness Hamwee: My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.

Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge

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about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.

Lord Rosser: My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then

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vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.

Lord McNally: My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.

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Baroness Corston: My Lords, the noble Lord, Lord McNally, must know that during our time in government, 39 women’s centres were set up—£15 million was spent setting them up—to divert women from custody. I take great offence at his suggestion that nothing happened.

Lord McNally: I am not suggesting that nothing happened, but I am suggesting that the problems that we are facing now are very real. We have made progress on this. We have ring-fenced funds in a time of very real problems for government funding. I am surprised that the noble Lord, Lord Ramsbotham, did not make even a passing reference to the fact that we are for the first time dealing with prisoners serving sentences of less than 12 months. I know that the previous Government tried that and then abandoned it. However, every time a Government try to make progress with an advisory committee it should not just be dismissed. I have been working for six months with Helen Grant and she is someone who is going to take responsibility. The Secretary of State has made her the Minister for Women’s Prisons, separating it out from other prisons so there is a line of responsibility.


As for an annual report, I cannot make an instant response at the Dispatch Box but I will take it back to colleagues. I want to see a real change in attitudes, and some of the things that are happening will make a change. We are approaching other departments in a way that has not been done before, and if it has been done before, we are going to try again to get a buy-in. As has been said, one only has to look at the various problems for women, such as drug and alcohol dependency and mental health issues, to realise that the Prison Service alone is not going to be able to deal with it. We have got to get a buy-in from the health service, we have got to get a more holistic approach to treatment and we have got to make sure that there are the facilities available outside prison to try to deal with female offenders.

We are discussing within government the question that my noble friend Lady Hamwee raised on the details of the impact on the family, to see how best that can be managed. The Opposition may have their doubts about payment by results, but I think that the approach of bringing in the voluntary sector and other providers to see if there are different ways is really positive. I will take away the idea of an annual report, and so that it is on the record, I will write to the noble Lord, Lord Ramsbotham.

I have no objection to the various pressure groups pressurising us; that is what they are for. However, there is a sea change, a difference of attitude, and there is the leadership given by Helen Grant. We are going to try to take this forward and make real progress. The noble Baroness, Lady Corston, knows full well that I have consistently paid tribute to her and the landmark nature of her report, both privately and at the Dispatch Box. I want to build on it, and I want Helen Grant to have the opportunity to do the same. However, it is worth recognising the progress that has been made, and rather than passing things into statute, as has been suggested, test us by outcomes.

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Perhaps the idea of an annual report is not so bad at all; I would be prepared to come back in a year’s time and try to give some positive advance on what we are trying to do with women. I do not think that you can be in this job, as I have been now for nearly three years, without feeling that the problem of women in our penal system is a disgrace that does not belong to any one Government; it is a disgrace for our society. Anything I can do to help ameliorate that in the time that I am in office, I will certainly take the opportunity to do. However, I do not think that it is done by putting things into statute, and I cannot accept the amendment this evening.

Lord Ramsbotham: My Lords, I thank the Minister for his reply. Over the years I have come to recognise that in the Minister we have a fully paid-up supporter of the probation service as well as a fully paid-up supporter of making improvements to the women’s justice system. Therefore, I am conscious that we are talking to somebody whose heart is certainly in making the improvements that we all know to be necessary. I also thank all those who have contributed to this debate. In various ways they have emphasised just how genuinely interested this House is in making progress and how disappointed it is that over the past 16-plus years we appear to have been there and then not there, and then there again and not there again, and so on. This has got to stop.

I do not discount what the Minister says about the commitment of Helen Grant and the leadership she is going to apply. That is not my point. I am not making suggestions for new structures. All I am saying is that in every other organisation things work where you have a determined Minister assisted by someone who is responsible and accountable to that Minister for the delivery. That is what is missing and it has been missing over and over again. It is not new and it is not something that I am plucking out of the sky, because it happens everywhere except here. I just pray that one day this penny will drop because I fear that Helen Grant, well intentioned though she is, will find that the advisory board will not be the mechanism and she will not be able to oversee the consistent delivery all over the United Kingdom. It is consistency that we want.

I deliberately did not mention all sorts of things that are in Transforming Rehabilitation because this is a much more general issue, but I am extremely encouraged by the Minister’s response to the suggestion of an annual report. That will be an excellent opportunity for this House to demonstrate not just its commitment to this but its very genuine interest and wish to apply the collective experience and knowledge in this House in the best interests of both the Government who are responsible at the time and the women whom we hope are going to benefit from what can be done. I am conscious that the Government have laid down things that they intend to do, which I hope that we can monitor, and on the hopeful note from the Minister, I withdraw my amendment.

Amendment 133A, as an amendment to the Motion on Amendment 133, withdrawn.

Motion agreed.

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Motion on Amendments 134 and 135

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 134 and 135.

Motion agreed.

Motion on Amendment 136

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 136.

Amendments 136A to 136C, as amendments to Commons Amendment 136, not moved.

Amendment 136D, as an amendment to the Motion on Amendment 136, not moved.

Motion agreed.

Motion on Amendments 137 to 139

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendments 137 to 139.

Motion agreed.

Jobseekers (Back to Work Schemes) Bill

Committee (and remaining stages)

10.55 pm

Clause 1 : Regulations and notices requiring participation in a scheme

Amendment 1

Moved by Lord McKenzie of Luton

1: Clause 1, page 3, line 14, at end insert “; and such reconsiderations and appeals should be considered in a timely and efficient manner”

Lord McKenzie of Luton: My Lords, I will speak to Amendments 1 and 3 in this group. These are probing amendments, but I want to start by saying how much we deprecate the fact that we are having to debate this significant and retrospective piece of legislation at this hour and to complete all the stages before we draw stumps this evening.

It might be helpful if I set out from the start how we are approaching these matters. We accept from Second Reading that, whatever our fundamental concerns, the Bill will retrospectively make regulations lawful that the court has thus far considered to be unlawful and that notices that were inadequate are now to be treated as satisfactory. What we are seeking to probe by these amendments is whether individuals adversely affected by this will be in no worse a position as a result of this Bill than they would have been had the regulations and notices been lawful in the first place. This, in

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particular, requires focus on the reconsideration and appeal situations so that we are clear how they are to operate.

Where individuals have been sanctioned and are not part of the stockpile, they may have appealed already. Their appeal may have been stayed because of the High Court decision, may have been successful or may have been unsuccessful. Where such individuals have been successful in their appeal, it is presumed that the position would stand. Can the Minister please confirm this? Where appeals have been stayed, what is the position? If the appeal was based on the unlawfulness of the regulations or the notices—a defence that is no longer available—are appellants now able to bring forward new reasons that they thought unnecessary to explore before? This raises the question of those who have not hitherto appealed a sanction. It is understood that, under the rules, the time limit for an appeal is generally one month from the date of the recent decision, but this can be extended if the decision-maker does not object or if the First-tier Tribunal extends the time limit. Has any specific guidance been given to decision-makers on this matter or to those who have been sanctioned?

For those cases that have been stockpiled and will now proceed to be sanctioned, the key issue is how, in retrospect, the individual can now be assured of availing themselves of good cause provisions, the opportunities to mitigate and the hardship provisions. My noble friends Lady Sherlock and Lady Hollis will develop these themes in subsequent amendments, but it would be helpful if the Minister could set out for us what consideration has been given to this issue to ensure that there is fairness.

In so far as the stockpile of cases is concerned—those for which no decision to sanction has yet been made—it is understood that no sanctions will be pursued when someone is now in work. Can the Minister please expand on this? Does the individual need to be in full-time paid work for the purposes of being ineligible for JSA or is there another test? What if the individual has been in work since the failure to comply but has fallen out of work again? As was raised at Second Reading, there will be those whose employment is not very secure or whose hours, particularly with the proliferation of zero-hours contracts, will fluctuate. The point in time when a decision on sanctions for them will be made could determine whether or not they end up being sanctioned. How will this point be dealt with?

On a related point, again touched on at Second Reading, will the Minister say something about national insurance credits? Have the sanctions that have been imposed led to any national insurance credit restrictions? If so, will the Minister explain the technical linkage with JSA sanctions? Would those restrictions flow automatically or in some separate, if parallel, process?

These are just some of the questions that present themselves and we seek assurance from the Minister that these matters have been fully analysed and that no further detriment arises to claimants. In the time available, we have not explored all the interactions between requests for revision, supersession and appeals, nor all the nuances of appeals. As a general point,

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though, as well as dealing with the specifics of the above, it would be helpful if the Minister could confirm that it is the Government’s intent that claimants should be in no worse a position in respect of these matters than if the regulations and notices had been valid in the first instance. I beg to move.

11 pm

Baroness Hollis of Heigham: My Lords, I support my noble friend in his amendments. Timely and efficient appeals systems are always necessary and in these circumstances they are essential. The social security appeals system is under strain and that strain will be intensified as a result of what claimants will now be experiencing. What are those difficulties? The number of social security cases going to tribunals in general were 418,000 in 2010-11, 70% higher than just two years previously, while, as far as I can tell, this year’s statistics are up a further 14% or so, and appeals against sanctions as such are only a modest proportion of these.

Social security appeals represent half of all tribunal cases. The tribunals are receiving social security cases faster than they can clear them, so that although half of all cases take 14 weeks or less, one-quarter take between three and six months to be heard and 10% take between six months and a year, so only half of those cases meet the key performance indicator, the KPI, of 16 weeks laid down by the department. During that time—that extra long waiting period already experienced—claimants’ circumstances change, they lose oral evidence based on memory and above all they are left without any benefit, some of them for months, and suffer real hardship. Timeliness and efficiency, therefore, are key.

We need the Government to tell us what problems they will meet in unleashing the stockpile of sanctions cases into a system already under strain, with the inevitable appeals that will follow, and how they propose to resolve them. How many cases are currently outstanding? Do the Government have the capacity to increase sitting days beyond the 80,000 or so required at the moment to deal with the full backlog? How long does the Minister expect claimants to have to wait? How many, and what percentage, will be over the three-month KPI target?

The second issue is not about numbers but about verdicts and outcomes. Of those cases going to appeal, some 40% overall are won by the claimant. Former presidents’ reports on this are, frankly, an excoriating indictment of the DWP decision-making process and their findings over the years are confirmed by the recent November 2012 report analysing appeals. The main reason why appellants win is that they produce additional oral evidence not previously taken into account by DWP. However, the reports and the research have noted that tribunal judges were continually frustrated by the behaviour of decision-makers within DWP. In the latest statistics, about one-third of local decisions on sanctions were reconsidered by the decision-maker and, of those, half were in favour of the claimant. Of those not accepted by the decision-maker, just over one-third are going on to tribunal.

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Why are those tribunal judges so continuously frustrated by decision-makers’ efforts within DWP? First, we are told by tribunal judges that decision-makers choose not to accept additional, usually oral, evidence without having any good reason for refusing it. That is because they have often failed properly to engage with the claimant. Something like 65% of all appeals come into this category. Secondly, there is little evidence that decision-makers reconsider cases at all. They were, the report said, reluctant to do so and did not bother to explore any discrepancies in evidence or to follow up requests for further information.

Thirdly, decision-makers did not weigh medical evidence at all appropriately, especially for mental health claimants, nor did they seek further information when dealing with a progressive condition. That applied to something like 15% of the appeals that went to tribunal. Most damning of all, they often made different decisions from the tribunal decision-makers on the basis of the same evidence presented to the tribunal, which meant that decision-makers got it wrong, according to law, in 30% of the cases lost by DWP. In other words, had the decision-makers within DWP done their job properly, these reports suggest that DWP would either not have had the appeal because the decision-maker would have rightly reversed the original decision, or at appeal the DWP would have won most of the appeals that it lost because the tribunals would have accepted that all the appropriate evidence had been properly assessed. That is a pretty searing judgment of the current system.

What are the implications for those caught by this Bill? The problem is clearly threefold. First, local offices are making flawed decisions, including on sanctions, and that is before we get on to the disgraceful area of targets. Secondly, decision-makers are not doing a proper job reviewing those local office decisions and are endorsing flawed decisions that they should have corrected. Thirdly, the tribunal service cannot keep up with the increased number of appeals coming its way. Of course, this will get far worse now that legal advice and support are withdrawn and, as a result and as we shall argue later, tribunal cases will take twice as long to process.

Will the Minister reduce the pressure on tribunals and better support claimants by requiring decision-makers to do a more conscientious review of the original decisions? It is clear that at the moment too many of them are not doing a professional job—bluntly, they need to brought face to face with the evidence. Are decision-makers informed of the tribunal’s findings and is their performance reviewed when their decisions are overturned by the tribunal? Could that perhaps be a KPI? What guidance and additional training will be made available to decision-makers to improve their performance? If the Minister is going to review any targets, could we please have a new performance indicator, a really useful target that reduces the number of successful appeals by claimants from the current 40% or so down to, say, 20% or even 15%? That would really transform decision-makers’ behaviour.

Given the trivial basis for sanctioning claimants uncovered by the Guardian, many of whom we can expect to appeal, thus increasing the backlog before

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eventually being overturned at appeal, as many of them will be, will the Minister ensure that cases going to appeal are pre-reviewed and re-reviewed by decision-makers to improve their own poor-quality decision-making? Will he also ensure that the number of tribunal sitting days is appropriately increased to meet the target of within 16 weeks, so that they are timely, and that—I am trespassing into a following amendment—sufficient advice is given to claimants, as my noble friend Lord Bach will argue, to reduce the number of unsuccessful appeals, given the delays? I hope that the Minister will be able to answer these questions and those of my noble friend tonight and in the process perhaps allay our very real concern for these claimants who are going to be caught up in an appeal system that is increasingly flawed and failing.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the purpose of these amendments is to ensure that the reconsiderations and appeals arising from decisions relating to sanctions that are dealt with by the Bill are considered in a timely and efficient manner, and that appeals take into consideration the delay between the failure to participate and the issuing of the sanction.

I am happy to give a commitment to the House that DWP will process the stockpiled cases, and any reconsiderations and appeals that follow, in a timely manner. It is not in the department’s interest to procrastinate on these cases any longer than necessary. I also note that the department is already required by Article 6 of the ECHR to deal with social security disputes in a reasonable time, while the First-tier and Upper Tribunals are also bound to deal with appeals in a fair and efficient manner. When the Bill receives Royal Assent, I assure noble Lords that processing the stockpiled cases, including any appeals and reconsiderations, will be given a high priority. Purely from a business perspective, DWP will want to unwind these cases and any follow-up activity as quickly as possible so that it can utilise its resource in dealing with more current claims.

The associated amendment seeks to ensure that when the First-tier Tribunals and the Upper Tribunals are determining an appeal against a sanction decision issued in reliance on the provisions in the Bill, they have regard to the circumstances around the Reilly/Wilson case, particularly any delay resulting from the case. I understand, given the noble Lord’s statement at Second Reading, that he is concerned that, because there may have been longer than usual between the failure to participate and the issuing of a sanction, the claimant will be unable either to remember or to provide evidence of any good cause they had for the failure.

I will spend a moment describing the process that happens between a claimant failing to participate and the issuing of a sanction. When a claimant gets referred to a DWP decision-maker for a sanction decision, a letter is sent asking them to provide evidence of good cause. The letter says:

“Will you please contact me before”—

and then a date is inserted—

“to explain why you did not undertake this activity. You should note that unless you provide a good reason for not undertaking this activity, your benefit may be affected”.

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So the stockpiled cases would, at the time of the failure, already have been asked once to provide good cause. The fact that we did not deal with these cases immediately will not have prevented these claimants from providing evidence of good cause at the time of the failure. The decision-makers will have all this evidence on the stockpiled cases already, so the risk that they have been unfairly treated is significantly minimised.

I know that not all claimants will have provided their evidence of good cause the first time they were asked for it, although this is of course entirely their fault. However, I reassure noble Lords that in these cases, where a claimant is attempting to argue that they had a good reason for a failure that occurred many months ago, decision-makers and First-tier Tribunals will make an objective decision based on the evidence before them. They would of course take into consideration any claimant’s argument that they had good cause, but that they cannot provide evidence because of the length of time since the failure. It would be up to those hearing the appeals to judge on a case-by-case basis whether they thought this argument was strong enough.

I also note that this amendment only seeks to ensure that the appeal, and neither the decision to issue the sanction nor the reconsideration, takes into account any time delay caused by the Reilly/Wilson case. I assume that this was not the intention of the noble Lord, Lord McKenzie. There is this oversight, and claimants in the stockpile would at the time have been asked for evidence of good cause. The tribunal is also already bound to have regard to all relevant matters.

Picking up the issues raised by the noble Lord and the noble Baroness on national insurance credits, prior to the changes to the jobseeker’s allowance sanctions regime from 22 October last year, national insurance credits were paid during the period of the sanction. National insurance credits are not paid when the benefit is sanctioned on or after 22 October. The Bill does not change these arrangements. The payment or not of national insurance credits with respect to stockpiled sanction decisions will therefore depend—

11.15 pm

Lord Howarth of Newport: I wonder whether the Minister would reconsider the language habitually used by DWP. When he talks of a stockpile he is referring to human beings in very anxious circumstances who are waiting for their cases to be considered. Does not this language rather dehumanise them?

Lord Freud: The noble Lord makes the same point as JRR Tolkien, who did not think that “gross” was the right way to refer to hobbits at Bilbo Baggins’s birthday party. If the noble Lord can think of a better word than stockpile, I will happily use it. I cannot think of one off the top of my head. If the noble Lord finds that offensive—

Lord Touhig: Does the Minister think that “people” is a good word?

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Lord Freud: Yes, but there are six billion people around. I am trying to refer to a particular group. I hope that by the time we get to the next amendment I will have found a better word, so bear with me for a little while if I cannot work that one out on my feet.

On the point about people going into work: if a claimant has been off jobseeker’s allowance for longer than the length of their sanction then they will be deemed to have served their sanction, and therefore will face no penalty. I cannot go through the absolute detail of the proportionate amount but it is likely that we will do this proportionately for those who have been in work, so there will be a record of that.

On the points made by the noble Baroness, Lady Hollis, a lot of the issues surrounding what the tribunals are doing are in ESA cases, while we are dealing here with JSA cases. We are talking about rather small numbers; I will go into more detail on them. This is a very small group of people, and the concerns about how quickly they may go through the tribunals, and the pressure they put on those tribunals, are to that extent much more manageable than if theirs were the more complicated ESA cases. Likewise, much of the concern around those cases has been around the medical area and that, of course, will not arise in this particular instance.

The decision-makers receive in-depth training, including on the importance of impartiality, what constitutes evidence, and the balance of probabilities. Clearly a large number of their decisions—three-quarters—are upheld. By putting decision-makers in between, for instance, the WCA and the tribunal, we were trying to weed out those areas where the DWP considered that the tribunal would find against, and thereby reduce the volume. That is what has been happening, and clearly we watch that very carefully. Having dealt, I hope, with all the issues raised, I beg the noble Lord not to press his amendment.

Lord McKenzie of Luton: My Lords, I indicated at the start that these are probing amendments. That highlights part of the problem of having this truncated process: that we do not have the chance to take away and read the Minister’s comments. We have to try to absorb both what is said and what is not covered this evening.

In relation to deferred decisions, I will not use the term to which my colleagues objected. The Minister said that these would be dealt with in a timely manner. However, the thrust of the presentation made by my noble friend Lady Hollis was to ask whether there was the capacity to deal with this. Decision-makers are struggling under current arrangements, and adding this extra burden will make life more difficult.

On national insurance credits, I was trying to probe the point that when they are withheld because of sanctions, post October, in circumstances where the regulations that underpin the sanctions were originally found to be unlawful, the Bill switches lawfulness back on in respect of the sanctions component. Does that automatically run where national insurance credits have been withheld? What is the connection between the two? Does it automatically flow from whether a sanction has been levied, or does it require another process that authorises the withholding of the national

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insurance credit? If the original decision was based on an unlawful position in respect of the regulations, is the restoration of the lawfulness of those provisions under the Bill enough to authorise the withholding of national insurance credits? That was the point I was probing, perhaps not in sufficient detail.

On those cases that have been deferred where no decision has been made, I think that what the Minister said was a change from what we previously understood the position to be. I thought that the point had been made very clearly before that if somebody was in work, there would be no sanction. It seems that some nuances to that have been introduced by the Minister’s reply. Now it will depend on how long they have been in work in comparison to the length of the sanction that has been levied. That seems to be a new formulation, which we have not heard articulated before.

I did not hear from the Minister an assurance that we were seeking. Leaving aside the issue of making the regulations and notices retrospectively lawful, is it the Government’s intention that individuals should otherwise be in a worse position than they would have been had the regulations and notices been lawful ab initio? How does that interact with the appeals process? We have not unpicked all those issues this evening.

Having said all that, I do not think that we can get any further. I hope that the Minister will reflect on this discussion. If we could get something further in writing before we rise later this week, it might give us some reassurance. For the moment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Lord Bach

2: Clause 1, page 3, line 14, at end insert—

“( ) The Secretary of State will, within a month of this Act coming into force, lay a report before Parliament outlining whether in his view claimants affected by the introduction of this Act have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction imposed under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations after the coming into force of this Act.”

Lord Bach: My Lords, Amendment 2 is in my name and those of my noble friends Lady Sherlock, Lady Hollis of Heigham and Lord McKenzie. My first point is that this is about as mild an amendment as could possibly be imagined. All that I am asking is that the Secretary of State should lay a report before Parliament within one month of the Act coming into force. The report would outline the Secretary of State’s view on whether claimants affected by the introduction of the Act would, in the crucial words,

“have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction … under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations”,

both of which were declared unlawful. It is a limited request, and one to which I hope the Government will listen sympathetically in the course of this short debate.

It goes without saying that every claimant has the right of appeal. It would be pretty shocking if they did not. However, what use is a right that cannot be

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enforced? That is where the problem arises. At present any claimant who has sanctions imposed can obtain legal advice as to an appeal, whether the appeal is in the form of a review to the department or to the First-tier Tribunal. If a claimant is eligible, they are, as we speak, entitled to legal aid. Therefore, in reality they can get the advice perhaps from a solicitor or, more probably, from a not-for-profit organisation such as a law centre, the CAB or an advice centre.

This advice is not expensive—about £150 for this sort of case. It does not make the lawyers rich. It is quality advice. It often tells the claimant that he or she has no chance in any review or appeal. On the other hand, it may tell the claimant that he or she has a proper legal appeal. Early advice of this sort stops people going to the First-tier Tribunal. It does not encourage them to do so. The advice does not extent to representation. What it does is give these citizens some limited access to justice, which a mere right of appeal does not do.

Of course, in a week’s time on 1 April, legal aid will no longer be available to a claimant in this kind of case however poor, disabled or marginalised he or she may be. It has been taken out of scope. The question arises: from where is the client who believes that he or she may have an appeal to get advice? Law centres, CABs and other advice centres rely on legal aid as a major part of their income. How will they survive? Will it all be done pro bono by other lawyers? I would argue it is not possible in the real world for that to happen. There is not the expertise in this field of law or the time for busy lawyers to do pro bono work to cover all these cases. All pro bono lawyers agree with that. There is no satisfactory answer to the question: where will these people go?

Her Majesty’s Government’s more general assertion has been that welfare benefit law, under which these sanctions arise, is simple, not complicated, easy to understand and is not really law at all. One only has to state that point of view to know what rubbish it is. The thousands of pages of legal textbooks, the comments of tribunal judges from top to bottom and the experience of real life gives the lie to a trite and convenient lie. In this amendment, I invite the Government to live in the real world and do their proper duty to ensure adequate legal advice and support.

My remarks so far have concerned all claimants who face sanctions since the introduction of the new regulations on 12 February this year, following the Appeal Court judgment. However, there is a past and pressing problem for those claimants whose cases have been put on one side as a result of a Court of Appeal judgment. The decision to sanction those people will either not be made, or it will have been made under what were ruled to be unlawful regulations, their time for appeal not having run out by 12 February. In both cases, they would have a reasonable expectation of knowing their fate some time ago. Any decision to sanction them would, of course, have been subject to appeal. Of course, claimants are entitled now to get legal advice and, if eligible, entitled to legal aid for that advice. But in a week’s time, while still theoretically they are entitled to legal advice for an appeal, they will not be entitled to legal aid, which means in practice

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that many fewer than should will be able to get that advice. How can it be just that those people are put into a worse position by a delay that is absolutely no fault of their own but is, frankly, the responsibility on the other side—in this case, the department and the Government behind it? That is according to the Court of Appeal—in other words, as we stand now, the law of the land. It would be wrong for any of them to be deprived of their right to legal aid in those circumstances. Does the Minister agree? If not, why not?

My amendment asks the Secretary of State to take into account the availability of legal aid for claimants in that situation. In my view, the Government can do no less. It is a modest amendment to which the Government could give their blessing. I beg to move.

11.30 pm

Baroness Hollis of Heigham: I support the amendment of my noble friend. I have to declare a sort of interest as a former Minister responsible in the DWP for the tribunal services before Leggatt centralised them. As a result, I would visit tribunals and, five minutes into the hearing, I could tell whether the claimant had or had not received legal advice and support or welfare advice and support before entering the appeal. Those who had presented a coherent account with the appropriate accompanying papers and evidence, were prepared for the questions asked of them. It kept the process simple and straightforward, and the cases that I saw took on average about 40 minutes to complete. In each case, the decision, usually up to half the time in favour of the claimant, was the right one.

Then there was the other sort of case that came to tribunal, people who came with their sheaf of papers in a carrier bag, which they shuffled through without any advice, unaware of what it was that the tribunal needed to know and what would count as relevant evidence. I recall one man, Indian or Pakistani, who was there with his wife; his eyes never left the floor, and he sat hunched over as he tried to explain in poor English and a low, faltering voice, why he was appealing against a refusal of DLA—and he could not. The superb chair, who we now call a judge, spent nearly two hours trying compassionately to coax his story and evidence out of him in some sort of order. It took more than twice as long as the previous case, and his appeal was upheld.

What lessons may we draw from the situation in which there is no prior legal help or support for advice? Social security decision-makers, as we argued on the previous amendment, frequently fail to review decisions properly. Unless the claimant is savvy enough to put his case in ways that fit guidance on reconsideration, we end up with an unnecessary tribunal case, and the tribunals handling such cases clear, as a result, two or three cases a day instead of five or six. I plead with the Minister to learn from this. I do not know whether he has sat in on any social security tribunals, but he would quickly see which claimants had had prior advice and which had not. Remove the advice and the need does not go away; it is merely displaced to the very much more expensive and time-consuming stage of the tribunal itself. Instead of advice being given in advance, the whole untangling of that mess has to be done by the tribunal judge in person. That seems to

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me key. The need does not go away; all you are doing is transferring it to the most expensive and laborious way of addressing it.

Legal advice, which we are told we cannot afford, is not a luxury; in my view, it is essential because social security is complex and most claimants, by definition, are probably poorly educated, not especially articulate, confused about what they are due and need help at the early stages. They are aggrieved. However, as my noble friend Lord Bach said, early advice may discourage people from pursuing unfunded and unfounded cases. Legal advice also helps ensure greater consistency and a common approach across regions. We are getting a lot of research evidence suggesting the unevenness of responses from decision-makers and tribunals trying their best to produce the consistency that local offices are not.

The Minister knows that we are seriously worried about what will happen when existing claimants are brought on to UC, which I very much want to work. I fear that the tribunal system will be completely overwhelmed unless there is legal aid and welfare advice available at the preliminary stage to screen out weak cases and to put into good order appropriate cases for the tribunal; otherwise, I believe that the system will buckle.

We are therefore deeply worried about the situation of claimants under the Bill who will not know what their rights are and whether the proposed sanction is valid. In some cases, they may have been stalled for many months. They do not have fresh evidence to bring to bear and can no longer rely on their memory to give a coherent account of what happened when. Did they have good cause? At the preliminary stage, legal or welfare rights advisers can perhaps help them find out, track hospital or school records, organise paperwork and explain to the claimant what will happen, why he has lost his benefit and whether the case against him is soundly based. If that welfare rights officer or the legal advice is not there to do that, the tribunal judge will have to, as I have seen with my own eyes. Can that individual stop the sanction? Is it possible for him to comply? Jobcentre staff cannot or will not now give that advice, especially given the evidence about targets. Claimants need the supportive, friendly, neutral, professional, cheap advice from outside the system. However, of course all this hinges on whether the department wants people to get the right benefits and the right outcome. Does it?

Lord Howarth of Newport: My Lords, is it not the case that every Government of the United Kingdom since 1948 have been committed to the principles and values articulated in the Universal Declaration of Human Rights? Is it not also the case that Article 7 declares that all are equal before the law and are entitled without any discrimination to equal protection of the law? If the Government deny legal aid in these cases, will they not repudiate that historic and fundamental commitment?

Baroness Sherlock: My Lords, in responding to this amendment, I should like to pay tribute to my noble friend Lord Bach, who has fought tirelessly on this subject for many months.

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As we have heard, it is currently possible for a claimant who meets the eligibility criteria to get free legal advice and assistance to cover preparatory work for a hearing. Legal aid may also be available for higher tribunals and courts appeals on a point of law. However, from 1 April, all welfare benefits will be out of scope for legal aid. The context for this Bill makes this all the more complicated because, as we heard from the Minister, the law on sanctions has changed, so claimants may struggle to work out what applies to their case. Further, since there may often be significant delays between alleged breach and appeal, claimants may also struggle to work out what good cause or recompliance mean so long after the event, subjects to which we will return on a later amendment. This brings me to my questions for the Minister. First, will he clarify the position? If a claimant would have been entitled to legal aid to help prepare his case had he appealed within a month of a decision to sanction him, will he still be entitled to legal aid on the same basis should he appeal after 1 April? If the answer is yes, how will this happen? Who will provide the advice and who will pay for it? If the answer is no, given that the Courts and Tribunal Service is likely to be inundated with cases once the deferred decisions pile is unleashed, what assessment have the Government done of the likely delays and the consequent additional cost to the Courts and Tribunal Service of having so many unadvised appellants arriving at once?

If the Government are unable to give satisfactory answers to all these questions, I suggest that the Minister should accept this very mild amendment. If he does not, and my noble friend Lord Bach chooses to press it to a vote, we on these Benches will give him full support. The very least that the Government should do is provide a considered view—impossible beforehand, given the timetable—of the effect on access to legal advice and support of a group which Parliament never intended to be affected by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act. We are pleased to support this amendment.

Lord Freud: My Lords, before I deal with this amendment, I ask the Committee to indulge me as I answer a couple of questions on the last round from the noble Lord, Lord McKenzie of Luton, which may be relevant.

On the question of what sanctions mean for national insurance, if the failure to participate was after 22 October 2012, national insurance is not credited but if it was before 22 October 2012 then it is. On going into work, no sanctions will be applied to people who no longer receive jobseeker’s allowance. That might save some writing.

Lord McKenzie of Luton: On the point about national insurance credit, I am not sure that the Minister’s answer deals fully with the issue that I raised. Perhaps the noble Lord will look at the record tomorrow and write in due course.

Lord Goldsmith: Does the Minister not think that what has just taken place illustrates how wrong it was to bring this Bill in and try to fast-track it through? He is answering, on the hoof, important questions in relation to the entitlement, not of stockpiles but of

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people. We have this problem because the Bill is being fast-tracked through. The amendments so far have been admirably moved. In relation to Amendment 2, the Secretary of State will, within a month of the Act coming into force, do something which we would normally expect the Minister to tell us before the Bill is passed. Will the Minister kindly reflect on that and consider whether it is not an absolute disgrace that the Bill is being passed in this way, as the Constitution Committee of your Lordships’ House, of which I am happy to be a member, said last week and other noble Lords made clear at Second Reading?

Lord Freud: My Lords, I may be to blame for moving off the particular amendment. We are not having a Second Reading debate now: we are dealing with a set of amendments. Amendment 2 seeks to ensure that the Secretary of State will have to publish, within one month of the Act coming into force, a report on whether claimants would have sufficient access to legal advice and support including legal aid. After 1 April, claimants who appeal to the First-tier Tribunal in England and Wales on welfare benefit issues will not, as a matter of course, be able to claim legal aid. This will be the position for all claimants affected by the legislation where they have applied for legal aid after 1 April. I hope that clarifies the position for the noble Baroness, Lady Sherlock. There will not be entitlement to legal aid after 1 April.

It is important to note that the change in legal aid in no way affects a claimant’s right to ask for reconsideration or appeal to the tribunal. This change in legal aid eligibility will have a limited impact on the claimants affected by sanction provisions in this Bill. Official statistics show that, of the 170,000 claimants sanctioned on ESE or MWA schemes, only around 5,000 appealed to the First-tier Tribunal. Based on these data, we therefore estimate that only between 1,500 and 2,000 claimants in the cases that have been stockpiled—cases, not people—will eventually appeal to the First-tier Tribunal. I also think that due to the nature of these cases it is likely that the vast majority of cases brought before the tribunal will be about a factual dispute where the claimant will need to present their case in plain language and will not require legal support. They will still be able to ask for support from, for example, a citizens advice bureau.

11.45 pm

There is also a provision that in exceptional cases, where it can be shown that a failure to provide legal support would amount to a breach of an individual’s convention rights under the 1998 European Convention on Human Rights, legal support will be provided. Therefore, those who absolutely need it will obtain it. None the less, the amendment is unnecessary because it is likely that these issues will be picked up by the independent review into sanctions, as set out in Clause 2. The Bill specifically sets out that the report will look at the operation of,

“the provisions relating to the imposition of a penalty”.

My understanding of that phrase is that the review will as a matter of course look at how the appeals to the First-tier Tribunal operate and how claimants navigate the tribunals system.

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Given that the numbers affected will be small and that we do not feel it necessary to legislate for this group, and that the independent review will look at how the appeal system will operate in relation to these penalties, I ask the noble Lord to withdraw his amendment.

Lord Bach: My Lords, I thank the Minister for his reply. I thank other noble Lords who have spoken, all of them in favour of my amendment. I also thank noble Lords who have asked questions of the Minister in regard to this matter.

I have to say that I sometimes wonder whether the Government really understand how important these issues are. We enjoy a system of law that enjoys a reputation that is well deserved over many years. One of the jewels in the crown of the English legal system is that people, when they hear about it, know that it applies to everyone, not just to the rich and powerful but applies, sometimes to a limited extent, to those who are at the bottom of the pile. That is the glory of the legal system. What the Government do not seem to understand is that it does not matter whether there are 20 cases, 500 cases, or 5,000 cases; these are fellow citizens who should be entitled to the protection of the law like everybody else. Is the Minister really saying that if the numbers were much greater the Government would change their attitude? I do not think that that is what he is saying.