Counter-Terrorism and Security Bill

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Tuesday 20th January 2015 Lords Chamber

[Lord Thomas of Gresford]

Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.

[Baroness Butler-Sloss (CB)]

Sympathetic though one may be to how individual people may feel, perhaps I may respectfully say that my noble friend Lord Pannick is absolutely right.

Justice and Security Bill [HL]

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Tuesday 26th March 2013 Lords Chamber

[Lord Thomas of Gresford]

I am not saying what decision he would have made—how could I possibly know? I am saying that the public would have been outraged at the idea that the Admiralty could go to see the judge up the back stairs, in a secret court, and produce the designs and the arguments to support their case.

[Baroness Butler-Sloss]

Perhaps I may say, as a court judge, that nobody would ever visit a judge up the back stairs when a judge was trying a case.

[Lord Thomas of Gresford]

I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.

The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.

I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?

As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

[Baroness Butler-Sloss]

I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.

[Lord Thomas of Gresford]

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Monday 5th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I am sorry that yet another lawyer is speaking, but I want to make a very brief point. In 1215, King John was persuaded to put his name to the Magna Carta, which had a very clear definition of access to justice. We have now, in 2012, nearly reached another centenary of Magna Carta. It would be helpful if current legislation made the definition equally clear. The provision, as it stands in Clause 1, lacks the clarity of the amendment in the name of the noble Lord, Lord Pannick. I cannot understand why, in these straitened times, the Government think that this measure will cost them any more money. It would act as a beacon and a pointer to what should be done in less straitened times when money is available to make this provision. I support the amendment.

[Lord Thomas of Gresford]

My Lords, I am surprised to hear the noble and learned Baroness, Lady Butler-Sloss, suggest that the Bill should abolish Magna Carta.

[Baroness Butler-Sloss]

I did not say that.

[Lord Thomas of Gresford]

Perhaps that is putting it a little too high. However, ever since Magna Carta, access to justice has been a fundamental constitutional principle, and the Bill has nothing to do with changing that principle. My objection to the amendment is simply that it is completely otiose and unnecessary to have statements of principle that have been with us since 1215 restated in this way. The noble Lord, Lord Pannick, said that he does not intend to trump Part 1 and asked whether a statement of legislative purpose was necessary. The noble Baroness, Lady Mallalieu, said that she was against vague statements of principle at the beginning of a Bill, but seemed to suggest that this Bill was a different case. The Bill is not about abolishing access to justice but about rebalancing it in certain ways.

I have been involved in the legal profession for nearly 50 years and in my experience the greatest change to legal aid occurred when the previous Government abolished it for personal injury cases, and against the principles of maintenance and champerty, about which I have bored your Lordships many times, decided to introduce conditional fee agreements with associated insurance. The Bill follows that line by emphasising the ability of litigants to take what is now a well used way—I accept that—of obtaining access to justice. Nothing in the Bill stops people bringing actions. Legal aid may not be available but the Bill makes it clear that there are other ways of approaching the court.

The success fees introduced in 1999, which have no relation whatever to the risk solicitors run in taking on no-win no-fee cases, have increased, along with the dreadful increase in the size of ATE premiums. When the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, introduced the concept in 1999, he was talking about ATE insurance premiums of £100 or £300—I have seen that in Hansard—as opposed to today’s £50,000, £80,000 or £100,000 premiums. The cost of litigation in this country has escalated to a disgraceful level. The Bill increases access to justice by squeezing out of the system unnecessary costs and expense, which have gone to lawyers and insurance companies. We will debate in detail the respective provisions and where we can do better. However, it must be recognised that even at this stage the Government have made significant and substantial concessions to improve various aspects of the Bill. I am sure that they will continue to do so in responding to some of the amendments for which we on these Benches will argue. Therefore, I regard this amendment as a statement not of principle but of unnecessary verbosity that should not enter the statute.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords—

[Baroness Butler-Sloss]

My name is on this amendment so perhaps the noble Lord, Lord Thomas of Gresford, will permit me to speak after the noble and learned Baroness. I will speak briefly to underline the points because she made them so well that it is not necessary for me to speak at any length.

I know very well that the Government recognise the seriousness of the impact of domestic violence, which as we all know is a serious scourge in family life. It is worth remembering that it is not only a serious scourge for the victims, because so many of these women and men—and there certainly are some men—have children. It is the children who probably suffer most, not only short term but long term, in their ability to cope with life. Consequently, if the women—it is mainly women—are unable to get to court with the appropriate help, they are not the only ones who suffer, because their children suffer also. I find it difficult to understand why the Minister cannot accept the ACPO definition. There is not much wrong with the Government’s definition but it is not quite as broad as the ACPO one. I have never understood the police to be unduly generous or overenthusiastic in their approach to these issues.

I underline what the noble and learned Baroness said on Amendment 43. If Amendment 43 is not accepted, either by the Minister or this House, a large number of victims will fall through the net. I find it hard to understand why that would be in circumstances where a doctor identifies domestic abuse or a judge or magistrate have found it by, for instance, the perpetrator admitting it and giving an undertaking that he will not do it again, so there is not a court order. I have professional experience of endless cases of domestic violence where it was much easier to get the man—usually the man—to promise not to do it again and to leave the house rather than having a battle over the individual events which he was not prepared to accept. It was absolutely understood in the court that he had done it, yet that will not now be acceptable for receiving legal aid.

There is also no shortage of credible witnesses suggested under new sub-paragraph (k), proposed in Amendment 43,

“from a counsellor, midwife, school or witness”.

That credible, documentary evidence from a responsible person would be acceptable to a court but will not initiate that particular victim getting the help that he or she deserves. I ask the Minister to look again at this absolutely effective group of circumstances in which victims tell their story. It should get to court with the appropriate help.

My last point, briefly, is on the 12 months. Again, as the noble and learned Baroness said, a lot of women take a very long time—some men take even longer—to get to the point of disclosing what happened. Sometimes they get away and do not disclose it until after 12 months. That does not mean that it does not exist or that they are not at risk. To have this arbitrary period of 12 months is, for those who do not get there before then, another real obstruction to the Government’s declared objective to try to stamp out domestic violence. For those reasons, I strongly support the noble and learned Baroness.

[Lord Thomas of Gresford]

My Lords, Amendment 39 is in the names of my noble friend Lord Macdonald of River Glaven and me. I am very sorry that he is not able to be with us at this particular point because he made a thoughtful and memorable speech in Committee that those who were present will recall. It was based upon his experience. As I recall it, the thrust of his speech was that we need to get up to date on the issues of domestic violence and not deal with them as we did 10 years ago.

I very much welcome Amendment 42 in the name of my noble friend Lord McNally. It has been criticised as being a narrower definition than that in the name of the noble and learned Baroness, Lady Scotland. I do not see it that way. What is omitted is,

“any incident or repeated incidents of threatening behaviour”.

The simpler and more concise words “threatening behaviour” are there instead. Anybody knows that just one incident of threatening behaviour could, for example, land someone in court. The other words that are omitted are,

“and including acts of neglect, maltreatment, exploitation or acts of omission”,

which must surely come within the definition of abuse of an emotional kind.

I turn to our Amendment 39, as opposed to Amendment 43 tabled by the noble and learned Baroness, Lady Scotland. There are certain differences between the two; for example, my noble friend Lord Macdonald and I suggest that domestic violence,

“will be presumed on an application for civil legal services”.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Wednesday 18th January 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the amendment was suggested by the Bar Council to put a particular issue into scope. It refers to:

“Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment”.

It arises out of a case called Re M, which was heard very recently by Mr Justice Baker. It was a case where someone was in a vegetative state, or the equivalent, and the family made application for the withholding of artificial nutrition and hydration from the person concerned. It was one of those terrible cases that one hears about from time to time. The judge made this particular series of observations, which I draw to your Lordships’ attention, in the course of his judgment. He quite deliberately set out observations for future cases. In paragraph 260, he said,

“given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant … the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the “playing field” was level because of the exceptional generosity of the Applicant’s lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family’s rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration”.

Your Lordships will appreciate that these cases unhappily happen from time to time, and when they happen, they exercise the family members, the practitioners and the judge to a very considerable degree. Each case has to be very carefully examined. In this case, the judge refused the application and said that the life of the individual concerned should be allowed to continue. The Bar Council’s proposed amendment would ensure that these cases come within the scope of legal aid, and I invite the Government to make an exception in these rare, but extremely expensive, cases.

[Baroness Butler-Sloss]

My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.

Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.

Legal Services Act 2007 (Approved Regulators) Order 2011

Debate between Baroness Butler-Sloss and Lord Thomas of Gresford

Tuesday 5th April 2011 Lords Chamber

[Lord Thomas of Gresford]

It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.

In my youth, managing clerks were a very important part of the solicitors’ branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.

Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.

[Baroness Butler-Sloss]

My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.

The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:

“The Lord Chief Justice raised a concern that any potential future extension of APs’ rights must be subject to full consultation with the judiciary and other interested parties”.

Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.