Social Action, Responsibility and Heroism Bill

Baroness Butler-Sloss Excerpts

Tuesday 6th January 2015 Lords Chamber

It can be put very simply. The phrase “act or omission”, which our proposed amendment would substitute for the word “activity” in Clause 3, would surely harmonise altogether more easily with the language of Clause 1 and focus the court’s attention more narrowly on determining the steps that the defendant should have taken to avoid a finding of liability. It is a small amendment, but a sensible one, which would give effect to what the Minister himself suggests is the proposed limited scope of this provision and would help courts in future.

[Baroness Butler-Sloss (CB)]

My Lords, I have forborne to say a word on this Bill until this moment. I rise only to say that the phrase “act or omission” is extremely well known in the law and is one which judges—I, too, sat as a judge for many years—understand perfectly well. The word “activity” is ambiguous. The noble Lord, Lord Pannick, and Simon—I am sorry, I should have said “my noble and learned friend Lord Brown of Eaton-under-Heywood”; the trouble is I know him so well—have made absolutely clear the ambiguity of this word. I cannot understand why the Government do not just take the perfectly sensible phrase “act or omission”.

[Lord Hodgson of Astley Abbotts (Con)]

My support for this Bill has been very well documented. Notwithstanding the attacks on it from noble Lords and, especially, noble and learned Lords, I continue, albeit as a non-lawyer, to believe it will play a useful role in encouraging, or at least not discouraging, individuals getting involved and participating and in consequence strengthening our civil society and so improving social cohesion. I fully admit there are aspects of the Bill which overlap with the provisions of the Compensation Act and that the provisions of the Bill will not provide a complete solution to what some people argue risks becoming an increasingly atomised and introverted society. It is just as important that the Bill will help with better insurance provision and the busting of myths.

One of my principal reasons for supporting this short Bill is that it provides clarity; it uses short, uncomplicated language that is comprehensible to the regulars in the saloon bar of the Dog and Duck. On Report, this approach seemed to come under attack from what seemed to be two diametrically opposed reasons, which have started to reappear in our debate this afternoon. The first approach, which was adopted by the noble and learned Lord, Lord Lloyd, and which was supported on Report to some extent by the noble Lord, Lord Pannick, at col. 17, which I will not quote this afternoon, appeared to argue that this legislation was superfluous in that judges could always be relied upon to take into account the factors that form the subject of the Bill. Later on in our debates, the focus changed and a number of noble Lords, in particular the noble and learned Lord, Lord Walker of Gestingthorpe, at col. 46, argued that the provisions of the Bill were too wide and required focus and definition to guide the courts and judges.

This amendment in the name of the noble and learned Lord, Lord Brown, seems to be moving towards the second approach. I therefore have concerns about the impact this amendment may have upon the clarity of the Bill, at least as it is seen through the eyes of the regulars in the saloon bar of the Dog and Duck. I have listened carefully to the two noble Lords who proposed the amendment, and I hope that they will forgive me if I say, again as a non-lawyer, that I have concerns about what they propose. My question to my noble friend on the Front Bench is: do we need three words in the place of the current one word? “Activity” has a simplicity and a clarity which may be clouded by those additional words. Generally, the shorter the better, so my instinct is to resist this proposal. However, I await his further advice.

Before I conclude I turn briefly to government Amendment 2. I am grateful to my noble friend for having taken away the amendment I proposed on Report on 15 December and for having responded so positively. The amendment was originally put down in the name of my noble friend Lord Hunt of Wirral, whom I am glad to see in his place this afternoon and who unfortunately was not able to be present on Report. He will be able to speak far more eloquently about this than me. I close by repeating my thanks to my noble friend on the Front Bench. The change that he is proposing this afternoon will improve the balance by encouraging people to get involved but without encouraging them to do so in a thoughtless or irresponsible way.

Criminal Justice and Courts Bill

Baroness Butler-Sloss Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.

We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.

The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.

My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.

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The noble and learned Lord, Lord Woolf, made some serious allegations about the Lord Chancellor’s regard for the rule of law, and that is a matter on which I think he has given evidence to the Constitution Committee. The Government believe that the reforms of judicial review are part of a natural improvement of the justice system. They do not fetter the independence of the judiciary or the very useful and fundamental role that judicial review plays. However, I do not think that anybody could realistically suggest that judicial review is not sometimes open to abuse. It remains valuable—indeed, more than valuable; it is critical—but I suggest that this reform is modest. It will satisfy the very public benefit and the public interest test that features—unnecessarily, we say—in the amendment put forward by the noble Lord, Lord Pannick.

[Baroness Butler-Sloss]

Before the Minister sits down, I wish to ask one question: how does he answer the second part of the comments of the noble and learned Lord, Lord Mackay of Clashfern?

[Lord Faulks]

It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.

Criminal Justice and Courts Bill

Baroness Butler-Sloss Excerpts

Monday 28th July 2014 Lords Chamber

That is the path that in my view we would be going down if we accept this clause. The clause should not be accepted: it is very dangerous. I am sorry to have to agree with what the noble and learned Lord, Lord Brown, said—that this looks as though it is part of a package designed to weaken the element of central protection of judicial review in our system. I hope that that is not a sinister, deliberate intention on the part of the Government, but it looks awfully like it when you look at this clause and the clauses that will come in the rest of this part of the Bill.

[Baroness Butler-Sloss (CB)]

My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.

Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.

[Lord Hart of Chilton (Lab)]

My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

Criminal Justice and Courts Bill

Baroness Butler-Sloss Excerpts

Wednesday 23rd July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a patron—probably the only patron—of a secure unit in Exeter, which, when the children are there for long enough, does an extremely good job. The education there is excellent. The unit receives children under the terms of the Children Act—Section 25, I think—and, certainly in the past and probably still now, children who have offended. It is a good institution. I very much support what the noble Lord, Lord Ramsbotham, said. I am very concerned that this excellent small unit, which does a useful job in Exeter, will be completely got rid of in favour of a large secure college situated somewhere which is miles away for the children who are not from Devon and Cornwall.

[The Earl of Listowel (CB)]

My Lords, earlier today I spent some time with an academic who left a young offender institution at the age of 15 without any qualifications. He has some sympathy with what the Government are proposing. As my noble friend said, the impulse to put education at the heart of meeting the needs of these young people is absolutely right. My difficulty, I am afraid to say, is that there is so little detail in what the Minister is proposing that I can see many very poor outcomes arising from it. As parliamentarians, we need to know more about what is going to be delivered to these young people.

I visited the Orchard Lodge unit that my noble friend described and, like him, I was most impressed by the high quality of multidisciplinary services that these young people receive. There may be lessons to be learnt from the research into the educational outcomes of looked-after children. I think that Professor Sonia Jackson was the academic who first drew attention to the disparity in educational outcomes between looked-after children and the general population of children at the end of the 1990s. This is relevant because many among the population in the secure estate have come from local authority care. She wrote to me recently, updating her research and looking again at the continent. She found that the United Kingdom has the best statutory framework for looked-after children and care leavers that we know of. That is a great endorsement of what this Government and the previous Government have done in terms of the legislative framework around these vulnerable young people. However, she also found that we have poorer educational outcomes than many countries on the continent. She ascribed this to the fact that we have such low expectations in terms of the educational qualifications of those who work near these young people.

As I mentioned earlier, in Denmark 90% of staff in children’s homes have a degree-level qualification and in Germany 50%. However, only 30% do in this country. As an authority was telling me recently, less than half of the managers of children’s homes have a degree-level qualification. If we are looking carefully at the policy to improve educational outcomes for our troubling, and often very troubled, children, we must take on board what my noble friend has said and his example from Missouri, where units are staffed by people with degree-level qualifications. I am reminded of the very interesting fact that the principal indicator for a good educational outcome for any young person is the level of qualification of their parents. If a parent has a degree, it is likely that their child will get a degree. It seems to make sense to look at the level of qualifications of people who work near these young people and to ensure that, as far as possible, they are well educated, so that those young people are likely to do far better in their own education.

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While respecting the profound reservations that have been expressed by the noble Lords, I ask that relevant clause stand part of the Bill.

[Baroness Butler-Sloss]

My Lords, I have a question. I apologise if the Minister dealt with it on Monday, when I was unable to stay for that part of the discussions. I referred, in my brief speech, to the family provisions for putting children into secure accommodation under, I think, Section 25 of the Children Act. Will any of those children go into secure colleges? If they will not, there is a real danger that there will not be any places for them if small secure units do not have both the children who offend under the criminal law together with the children who are beyond control under the Children Act.

[Lord Faulks]

I dealt with these points on Monday. We are proposing to keep these secure children’s homes open for the appropriate offender. The involvement of the Youth Justice Board will, we suggest, ensure that the right offenders find their way into secure colleges.

Criminal Justice and Courts Bill

Baroness Butler-Sloss Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, I intervene briefly. I have deep unease about this clause for a number of reasons that have already been given by the noble Lords, Lord Marks and Lord Deben. I hope that the Minister will be able to help me further.

I do not like mandatory sentences. As someone who has practised in the courts for 40 years on both sides, I have seen a great many cases involving knives. I have seen the consequences of them and I have dealt with many people whose lives have been devastated by their use. However, mandatory sentences lead inevitably, in a very small number of cases perhaps, to injustice. There must always be a proper discretion for the judge who hears the facts and sees the people involved to make the right decision on sentencing. I do not like gesture politics either, and sometimes as a result of pressure we are led to amendments in this House which are not going to be the right route to getting the best result.

I should be grateful if the Minister could help us about the discretion currently contained in the clause. The noble Lord, Lord Marks, interpreted the word “particular” in Clause 25(2B) as something exceptional. I would like to know whether he is right. Could “particular circumstances” of the first offence not be the circumstances which relate to the offender and therefore allow judicial discretion to be exercised? It would seem wholly wrong if the circumstances of the first offence were relatively trivial. I can think of an occasion when someone came to see me in this House wearing a Barbour mac which he had worn on the farm in which was a knife that was discovered as he tried to come into the House. He had no idea that he had the knife with him, which he used for cutting straw bale string. It is incredibly easy for somebody to be carrying a knife without appreciating the first time what has happened. I take what the noble and learned Lord said about the second occasion, but although we often speak in this House about sending messages, I doubt very much whether many 16 to 18 year-olds are sitting reading Hansard and taking them in. They may get around in the street. Can a judge really not take into account the trivial circumstances of the first offence when he has to decide whether to impose a custodial sentence? I agree with what the noble Lord, Lord Deben, said about the complete lack of help that a custodial sentence almost inevitably gives to a young person.

[Baroness Butler-Sloss (CB)]

My Lords, I deplore the carrying of knives, as do all of us in this House. I shall make two short points to support the noble Lord, Lord Marks. First, I am sad to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but my experience of teenagers is that those between 16 and 18 would probably not take the slightest notice of a deterrent, as has already been said. Those who are slightly older—over 18—might, but from my experience as a family judge, I doubt that this would be a deterrent to 16 or 17 year-olds.

Secondly, I sat occasionally in crime, and was not very good at it, but I find it quite extraordinary that successive Governments seem totally unable to trust the judiciary to come to the right conclusion. We know from previous speakers that judges already have all the powers they need to deal with a second offence, to deal with it strongly and to put people away for much more than six months. For those two reasons, I very much support the noble Lord, Lord Marks.

[Lord Hope of Craighead (CB)]

My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.

Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.

Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.

I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

[Lord Mackay of Clashfern]

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

Assisted Dying Bill [HL]

Baroness Butler-Sloss Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I strongly agree with the last sentence of the noble Lord who has just spoken. I oppose the Bill but think it is extremely important that it should go to Committee. I declare that I am a vice-president of the Exeter and east Devon Hospiscare.

Many people, as many as 70% to 80%, support the Bill, according to the statistics. However, there must be many noble Lords around the House who, like me, have received an enormous quantity of mail about this. The interesting thing is that 95% of the mail that I have received has been against the Bill, expressing very considerable concerns or giving examples of why the writer is worried about the Bill. It is also interesting to remember that most of the royal colleges—in particular the Royal College of General Practitioners, whose members are the most likely to be involved in this—and the British Medical Association are against the Bill.

I did not read the Supreme Court decision in Nicklinson as in any way supporting the Bill. What it said of course, as previous speakers have said, is that we in Parliament should look at the issue. The President of the Supreme Court made the interesting point that the Bill would not help the applicant, Mr Nicklinson. Indeed, it would not help those who are most disadvantaged and crippled by serious disease or injury—for instance, those with locked-in syndrome. Anyone who could not administer it himself or did not have some device that, by a flicker of the eyelid, would do it, would not actually be helped by this Bill. From listening to the debate, which has been utterly fascinating and deeply moving, it is quite clear that we in this House are looking at a very difficult balance, which requires very careful safeguards.

My view is that the safeguards in the Bill itself are utterly inadequate. The safeguards that so many people have asked about need to be in primary legislation and not left to a Secretary of State to produce in regulations. I will just very quickly go through some of the points where the Bill is defective. How on earth are people going to find a doctor to be the attending doctor if their own GP is opposed to doing it—and the college of GPs is opposed? You will almost certainly not find a doctor who knows the patient. Then you have to find a second doctor, and both of them have to be in the minority group of those who support assisted dying and are prepared to help to kill. Is there not the real danger that there will not be an exhaustive assessment of the determination to die or a proper look at how vulnerable the individual is or at whether they may feel they have an obligation to die as they have got to an age where their family would like to have the money rather than paying for them? In order to find compliant doctors, will we end up with a sort of tick-box system?

There are also no criteria about mental ability to make the decision. How do you decide whether someone is in the first stages of Alzheimer’s? Will there be an assessment by a psychiatrist? There is nothing there. There is no register of lethal drugs and no audit of doctors carrying out assisted dying. The question marks are there and should be addressed in the primary legislation. It is absolutely clear from the commission of the noble and learned Lord, Lord Falconer, that this is certainly seen by most people as the first step.

Legal Systems: Rule of Law

Baroness Butler-Sloss Excerpts

Thursday 10th July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

I should very much like to have the opportunity to respond to the noble Lord, Lord Plant, but I think the short answer to what he said is that the concept of the English rule of law is the one that we follow and which we are discussing today, and which I would commend. However, it would be very good to have more time to discuss the very interesting points that the noble Lord has just made. I have a feeling that this, with some notable exceptions, is very much a lawyers’ meeting place, if not a picnic. I am afraid that, as yet another lawyer, I am contributing to that.

It is entirely appropriate that the noble and learned Lord, Lord Woolf, should have put forward this most interesting debate. Although he is too modest ever to accept it, he is an excellent example of the export of English law and its systems around the world. In my view, he is a shining example of the English legal system and our judiciary. He was one of the British and Australian judges in the final Hong Kong Court of Appeal; he set up the financial court in Qatar and was its first president; he has been an international mediator and arbitrator since his retirement; and, like other English retired judges and lawyers—not retired lawyers—he applies English law right across the world.

I shall speak briefly today about family law, as a former president of the Family Division. I want to make two points, one positive and one negative. First, I congratulate each of the Governments over the past 25 years on the introduction of good family legislation. The family courts apply almost entirely statute law, and it is an area where the legislation has played a much more important part than in many other areas of the courts, and particularly rather less of our common law. Government and Parliament are essential components of the application of family law to the litigants, who need a rather special type of help from the administration of justice. I applaud much of the legislation, from the Children Act 1989, through some excellent legislation under the previous Labour Government to the recent Children and Families Act, together with recent excellent reports such as Munro and Norgrove.

Having spoken of the good part of family law, I now turn to the bad part. From April this year, as noble Lords will know, there is no legal aid in private family law disputes, including children and finance, unless it comes within a very small list of exceptions such as domestic violence and child abuse. From my experience of 35 years sitting at different levels of the family court, I know that divorce or separation of couples who have lived together is a painful emotional process for most people, and for some it is traumatic. In a small but significant minority, perhaps 5% of cases, the former relationship turns corrosive and one or both former partners use the courts as the arena to fight their failed relationship. Some people in this position hate the other person so much that they cannot see why their children should love or have anything to do with the other parent, and they cannot come to any agreement. The government emphasis on mediation is excellent as far as it goes but it will not work in this 5% of cases. Judges and lawyers know this but successive Governments do not and either appear not to understand or will not listen.

Barristers and solicitors who did this private law work did not earn large amounts. Their desire has always been to seek a settlement of the issues between the parties, and their protocols require them to put the welfare of children first. They now do very little of this work because most litigants have no money, so men and women, untrained in the law but fighting their failed relationships through the arena of the courts, are appearing unrepresented before judges and magistrates. The task of the courts, faced with carrier bags of unsorted and disorganised papers in child cases and even more so in financial disputes over the former matrimonial home and maintenance, is huge and unmanageable. On a practical note, it clogs the courts and creates delay so I hope that the Government will listen to the fact that it is not cost-effective. It is only in suspected child abuse cases that there is legal aid so that the children may be represented, and I have to say to your Lordships that parents are the worst people in this group of cases to make any decisions about what should happen to their children. Anyone but parents would be better because this comes in the aftermath of their traumatic separation.

We have Magna Carta celebrations next year and, in my view, they will sound hollow in the face of the failure to be able to do justice in private family law disputes. Clause 40 of Magna Carta, written in 1215, provided for access to justice, which is not achieved in 2014. I am so glad that I am not a judge any more and do not have to sort out these problems. When other countries look across the Atlantic or the channel at the system of family law in England and Wales, they will not applaud us.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Baroness Butler-Sloss Excerpts

Wednesday 7th May 2014 Lords Chamber

[Lord Clinton-Davis (Lab)]

I support the Motion. I am deeply impressed by the noble Lord, Lord Pannick, and the whole House will be indebted to him and the noble Lord, Lord Lester. Together they have adduced a withering criticism of the notions, buttressed by the noble Lord, Lord Lester. The Government are entirely mistaken in what they intend to do. They are determined to whittle away the availability of legal aid. What they intend in this regard provides another example of what they have in mind. It may not be as significant as other measures but none the less it is important in its own right. The intention is condemned, as has been said, by the Bar Council, the Law Society and by lawyers who practise in the field, without exception. Even the noble Lord who will reply to the debate must be concerned about what the Government intend.

Lawyers do not earn in this field—they earn insignificant sums. They do it because the law intends that they should, and they abide by that intention. Moreover, legal aid may be denied after the lawyer has taken on the case. In other words, the court can decide after the event. I wonder whether that is fair. Is it just? Should it be done? Judicial review, as has been said, is an important remedy. It enables the court to determine whether the Executive have exceeded their powers in law. That should not be disregarded. Of course, this measure should not be viewed in isolation. The Government have already vent their opposition to judicial review as we know it, having decided that time limits that were previously prescribed should be curtailed, thereby enabling the Executive to restrict access to the courts. Is that right? Should it be tolerated for one moment?

In none of the recent situations have the Government given consideration to the impact of the changes that they seek to implement. Indeed, one would have thought that, having proper regard to the significance of access to justice, they would at least pause before embarking on further destructive changes. According to the Secondary Legislation Scrutiny Committee, to which reference has already been made, the Government’s intent is to procure savings that they estimate as some £1.3 million from the legal aid budget. The committee believes that, in fact, these costs will simply transfer costs to another area. Indeed, that is already happening. Clearly, what should be considered is the entirety of the Government’s expenditure. There should be a proper, measurable analysis of either the savings to be incurred or the benefits intended as far as the public is concerned. Neither has happened, and the lacuna is absolutely woeful.

The Government argue that their changes will result in 69% of legal aid being removed. Is that not extremely worrying? Are the Government not concerned about this? Is the Minister, who is himself a lawyer, also unconcerned? Why should the availability of legal aid be decided on a discretion which is exercised after the event? If in fact only a few cases each year—the estimate is some 751 cases—would result in legal aid being removed, why bother? Why should lawyers representing extremely vulnerable people be victimised? Why should they have to wait, as the Government propose, until later? Where else in law is anything like this proposed? In my view this represents a backward step, and the Government should be thoroughly ashamed of introducing it.

[Baroness Butler-Sloss (CB)]

My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

[Lord Carlile of Berriew (LD)]

I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.

Senior Judiciary: Women

Baroness Butler-Sloss Excerpts

Tuesday 1st April 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether, as a former woman judge, I might add something. I agree with what the Minister said about the problem being further down, but I wonder whether the Government might look at women who leave the professions, both the Bar and solicitors, because of the stresses of family life, who ought to be encouraged back several years later but will require some training? Nowadays, it is of course possible to go up the ladder, as indeed I did—my husband called it a hawsepipe—to go from a fairly junior position through to the High Court and even higher. You need to get the women back who have left because they have skills that are underused.

[Lord Faulks]

The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Baroness Butler-Sloss Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I suppose that one should be grateful for small mercies and welcome what is provided for in Regulation 4(2) and (3): advice and assistance for issues relating to the release by the Secretary of State or for consideration for release by the Parole Board, and for proceedings that involve the determination of a criminal charge. However, they are very small mercies: these provisions were, of course, unavoidable. They are essential to protect against the risk of challenge by prisoners whose basic rights under Articles 5 and 6 of the convention were being infringed.

The point is this: there are very real grounds for concern as to what is being left out, a list of which is set out in paragraph 7.6 of the Explanatory Memorandum. For reasons of time, I will not go over the details, but one is bound to ask how robust the system of complaints is on which there is so much emphasis and to draw attention—as the noble Lord, Lord Pannick, has done—to the effect of the absence of legal advice, which always focuses the issue more directly and saves money by directing attention to where the problem really lies.

The other major gap is that to which the noble Baroness, Lady Kennedy, has drawn attention; namely, the position of the vulnerable, of whom there are so many, both male and female, in prisons and in young offender institutions too—for example, those with language or learning difficulties. I am struck by one of the provisions in paragraph 9.2 of the Explanatory Memorandum, which tells us that a note has been issued for distribution to prisoners to explain the changes to the system—but what provision is being made for those who cannot read or who do not speak English? Can we really be confident that steps are being taken to deal with their needs and give them the advice they need?

At the heart of this is something else, which, I suggest, is profoundly worrying: the increasing tendency to treat prisoners as some kind of an underclass. They are to be regarded as having surrendered their right, when they go into custody, to be treated like everyone else, except to the extent necessary to serve their sentence. We are all familiar with the debate about prisoner voting; but the effect of denying them the vote is really quite trivial when compared with what these changes will mean for many who are in a position that puts them at such an obvious disadvantage when compared with everyone else, having been locked up by the state.

Paragraph 7.4 of the memorandum states that the amendments aim to target limited public resources at the cases that really justify it. So far so good; but then there are the words,

“to ensure that the public can have confidence in the scheme”.

Those really are weasel words. What is the basis for that claim? Who are the public? What do they know about the effect of all these provisions on prison law? What about the prisoners, their wives, parents or children? What about the many organisations and individuals who really do care about the mistreatment of prisoners or their rehabilitation?

Some years ago Justice Breyer of the US Supreme Court observed in a lecture in London that it is not the job of judges to be popular. That is why we have judges who are not elected. If you want to be popular, you have to win votes: you must appeal to the majority. Of course, one way of doing that is to devalue the rights of the minority. When it comes to the use of resources, there is a temptation: they can be diminished or left to one side because the majority can be relied upon not to care about them and not to object. That is all about winning the confidence of the majority, which is what this sentence really refers to. It is not difficult to imagine what, in the wrong hands, this may eventually lead to. The line of thinking, therefore—the political philosophy that seems to underlie these proposals—is perhaps even more worrying than all the details which, in themselves, are so troubling. I join others in expressing my thanks to the noble Lord, Lord Pannick, for bringing this Motion before the House.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, regret very much these legal aid regulations in relation to prisons. The amount concerned is apparently about £4 million. The cost of each lawyer to give advice or representation is a fixed fee of £220. As the noble Lord, Lord Pannick—who, in my view, has done the House a great favour by bringing this issue before noble Lords—has already said, that is achieved very often by a letter that resolves the problem.

I received a very interesting and useful e-mail from a committee member of the Young Legal Aid Lawyers, which is a group of students, lawyers and barristers committed to practising areas of law traditionally funded by legal aid, which includes prison law. They raised three points that I want to make to the House, which identify three vulnerable groups. They have been referred to already, so I hope that the House will forgive me for referring to them again.

One group of young people—they are children—have advocates from Barnardo’s, which is a step forward. As far as I know, however, they are not lawyers and do not provide that specialised help which, for instance, is needed in the resettlement of young people who come out of secure accommodation or youth prison. Those young lawyers are of course experts in dealing with these problems.

The second group is mothers and babies. The issue of mothers and babies has been raised already, but let me take a different point. As a former family judge, it is the baby that I worry about. There is no one to speak for the baby; he or she is removed from the mother, with all the emotional harm that is done to a baby in those circumstances, even if that mother and baby are reunited at a later stage. In that instance, a lawyer can help to organise it so that the mother and baby remain together.

The third group that has already been referred to is that of vulnerable adults. I will make two points. First, in our prisons there is a very high percentage of people with mental health problems. Some have single mental health problems; many have multiple problems. There is also no shortage of people without education and with learning disabilities. How on earth are they to cope with putting forward whatever is the issue that needs to be put forward if they do not have someone to help them? I doubt very much whether the internal arrangements or even the ombudsman will meet the specialised help which, for a very minor cost to the public, these lawyers can give. If, as the noble Lord, Lord Pannick, suggests, it is ideological, the money does not matter; but I suspect that for the rest of the Government money matters very much. It is not very much money and it saves a great deal. Therefore I urge not just the Lord Chancellor and the Secretary of State for Justice, but the Government generally, to rethink the balance of saving money and the damage caused by taking away this facility and the lack of appropriate legal advice and representation that to me, as a former judge, is a denial of access to justice.