Crime and Courts Bill [HL]

Baroness Kennedy of Shaws Excerpts

Wednesday 27th June 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I agree entirely with what has already been said but I wonder whether I might add another point. I refer to a situation where a Lord Chancellor is not a lawyer or a very senior person but perhaps wants to make his mark in the political world and is much more overtly political than the present Lord Chancellor, who is very distinguished in his own right in the law. I ask the Minister to visualise the meeting of the commission. The Lord Chancellor is a member of the commission. He has a role as the Secretary of State for Justice, but he is only a single member among a number of people. Either he is going to be very powerful and he is going to override what everybody else wants, or he is not going to be very powerful, and he is going to be very dissatisfied with not being able to carry the commission with him. Either way would be extraordinarily unsatisfactory for someone who is head of the administration of justice in running the courts and has some responsibility for the judiciary. It is yet another point that leads me to support the amendment of the noble Lord, Lord Pannick.

[Baroness Kennedy of The Shaws]

My Lords, I too wish to support the amendment of the noble Lord, Lord Pannick. I see this part of the Bill as being one of those ideas which starts with good intent but has risks attached to it: it is the law of unintended consequences. I can understand that those who have looked at the appointment of senior judiciary and have seen the absence of women, for example, have thought that perhaps if somebody—the Lord Chancellor—were sitting on that panel, he would be able to represent more vociferously public concerns about the way in which appointments are recreating the same people. I can see that that was the intention of giving a role to the Lord Chancellor in the current appointment procedures.

However, we must be very conscious of the risks. We should be concerned about the way in which this could be detrimental to our constitutional arrangements and could be the beginning of a much more politicised role for the Secretary of State as Lord Chancellor sitting on such committees. I say this because, regarding the slide to such things, we always say, “Oh, it could not happen here”. I have just heard the decision made in Europe today that the new judge to be appointed to the European Court of Human Rights will not be the preferred candidate coming forward from Britain. The person appointed was pushed by the Conservatives in Europe and supported by Russia and Serbia. The best candidate, Ben Emmerson, one of our most distinguished human rights lawyers, did not get that role because of politicking of the ugliest kind. He was considered to be too protective of human rights.

We should be ashamed of what has happened in that appointment process and we should be aware of what happens when politics enters the fray in judicial appointments and how it can often lead to unsatisfactory outcomes. I raise this as a warning because it happens all too easily. The best candidate has been lost to the European Court of Human Rights and it has happened because of an ugly form of politicking.

[Baroness Falkner of Margravine]

My Lords, I fear that I will be in a minority of one, which is always a rather brave position, but it is important to put another perspective. That is what the House of Lords is very good at, so I rise to put that other perspective.

The Government’s position is essentially about whether the so-called nuclear option is the way forward or, as I would put it, whether the power to reject after the process, or influence, is the right way forward. I should have declared at the outset that I, too, am a member of the Constitution Committee, but I was not a member when its most excellent report on judicial appointments came out earlier this year.

I note the Constitution Committee’s recommendations in this regard. It states that the Lord Chancellor’s inclusion on a selection commission risks politicising the process, an argument which we have heard today. I draw noble Lords’ attention to the text of that report, which shows that the committee’s witnesses were in two camps; it was not a straightforward matter even at the time. There were those who thought that the current system was the only way to preserve the independence of the judiciary and there were those who believed that the political angle was invariably part of the greater balance of considerations. Among those who felt that the Lord Chancellor should have an increased role were Lord Justice Goldring, Jack Straw MP, a former Lord Chancellor, and the noble and learned Baroness, Lady Hale.

Even when resisting greater involvement, the Constitution Committee states at paragraph 25 of its report that it is important to maintain the connection between Parliament, the Executive and the judiciary partly so that,

“the government cannot entirely wash their hands of what is happening”—

I believe that those were the words of the noble and learned Lord, Lord Woolf—

“and partly to enable the Lord Chancellor better to defend the judges from attack by taking responsibility for the system which appointed them”,

which I believe were the words of the noble and learned Lord, Lord Falconer. The issue then is the extent to which the independence of the senior judiciary will be compromised if the Lord Chancellor sits as a non-chairing, non-voting member of the selection commission. We are talking of two instances only. We are talking of the positions of the President of the Supreme Court and the Lord Chief Justice.

Six years to evaluate the current system is a very short time—I am talking about the six years since the Constitutional Reform Act—but, in the longer term, a given Lord Chancellor may wish to exercise the right to reject or ask for reconsideration of a nomination. We also need to remember, in that context, that this Lord Chancellor, whoever he or she may be, will get only one name coming forward. He will not have a choice of three candidates, hierarchically or non-hierarchically ordered, and make a judgment as to which of those two or three might be the best candidate. He will have the very stark choice indeed of exercising the nuclear option—rejection—and I suggest that, as things stand under the Constitutional Reform Act, it would be virtually impossible to exercise that nuclear option. The noble and learned Lord, Lord Woolf, himself explained to the House that you have to give your reasons in writing for doing so.

Crime and Courts Bill [HL]

Baroness Kennedy of Shaws Excerpts

Monday 25th June 2012 Lords Chamber

[Lord Pannick]

My Lords, I find this a much more difficult issue than some noble Lords who have spoken. The noble and learned Lord, Lord Lloyd of Berwick, emphasised that we all agree about the importance of diversity, and the noble and learned Lord, Lord Woolf, emphasised his personal commitment to diversity, which I am aware of and, of course, I recognise. The noble and learned Lord, Lord Lloyd, referred to the statistics and said correctly that some progress has been made, but the position is still woefully inadequate. Some 16% of High Court judges and only 11% of Court of Appeal judges are women. These figures are simply unsatisfactory and urgent progress is desperately required.

As the noble Baroness, Lady Jay of Paddington, mentioned, the Constitution Committee, of which she is the distinguished chairman and I am a member, conducted an inquiry into judicial appointments and reported in March. We found that one of the reasons for there being so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. At paragraph 112 of our report, we observed that one significant reason for the increasing proportion of women at senior levels in other professions in recent years has been due in large part to the greater use of flexible working hours. At paragraph 117, we recommended that allowing flexible working, certainly at the High Court and Court of Appeal levels, was the “minimum change necessary” to promote diversity. We said that:

“For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working”.

We need to recognise that many women will either want or need to take career breaks, or work part time or flexibly for family care reasons.

As I understand them, the noble and learned Lords, Lord Lloyd of Berwick, Lord Carswell and Lord Woolf, are essentially concerned about the practicality of part-time working, certainly at the Supreme Court level, but mention has also been made in this debate of the High Court and the Court of Appeal. In my experience, from the perspective of the Bar, I must say that the overwhelming majority of cases in the Supreme Court, the Court of Appeal and certainly in the administrative court occupy three days or less. Of course, there is much work to be done by judges out of court—I do not for a moment suggest that judges work only between 10.30 am and 4.15 pm—but actual time in court, which has been mentioned, occupies three days or fewer. Of course, there are longer cases, sometimes six or nine months, but they are unusual, exceptional or out of the ordinary. In any event—this is why I find this a more difficult issue than some noble Lords who have spoken hitherto—we ought to bear in mind that even at the Supreme Court level, judges have taken time away. They continue to do so, as I understand it, for a month at a time to sit in the Hong Kong Court of Final Appeal. As shown by a notorious example recently, judges at the Supreme Court level take time off, for very good public interest reasons, to sit on inquiries. We should not proceed on the basis that every judge works exclusively, full time in a particular court.

The noble and learned Lord, Lord Woolf, mentioned—he is absolutely right to emphasise this point—the high reputation of our Supreme Court and, indeed, of our whole judiciary. It is a remarkable fact that as the public have lost confidence—regrettably—in many other institutions of our society, including, most regrettably, Parliament, but also the press and the City, the public rightly retain the utmost confidence in the judiciary. It is one reason why the public are quite prepared to listen carefully, as I am sure they will, to what Lord Justice Leveson will say about press freedom. However, we ought to bear firmly in mind that the confidence of the public in the higher judiciary is in danger of being undermined to the extent that the higher judiciary reflects and is composed of so high a proportion of men with such a small proportion of women.

The point was also made by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, that surely, when someone has reached their late 50s, or 60s, when in the normal course of events they would be eligible for appointment to the Supreme Court, they ought to be prepared to sit full-time. However, surely one can envisage circumstances in which a women aged 60—slightly younger or older—may have a child aged 15 and may find it difficult to sit on the Bench during school holidays. She may also have an elderly relative for whom she is caring. These are not unrealistic examples.

In any event, I suggest that the provisions in the Bill which concern the noble and learned Lords who have spoken are merely permissive. They would obviously not be applied in relation to a Supreme Court appointment unless and until an occasion arose when it was practical to do so. I suggest to noble Lords that, given the importance of a real commitment to flexible working, it would be most unfortunate indeed if the Bill were to contain that commitment but exclude it in principle in any circumstances at Supreme Court level.

[Baroness Kennedy of The Shaws]

This is an issue close to my heart. When I was a young lawyer in the 1970s I contributed to a book called The Bar on Trial, written by a group of young lawyers seeking to address the nature of the Bar at that time. I wrote the chapter on women and I have been writing about women and law ever since. The issue of flexibility is the one that exercises women in the profession more than probably any other. It is the reason why women’s careers look different—they are the people who have children and who are the primary carers.

Increasingly, women now at the Bar, perhaps unlike those of previous generations, have a different way of wanting to deal with their role as mothers. Their children are not going off to boarding school in their primary school years, they are not away from home, they are still living with their parents and there is therefore the issue of who is the primary carer. Still, I am afraid, it usually falls to women, so I am grateful to the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, for emphasising that this is about flexibility. I regret that the words “part-time” are used. Can we find a way of reformulating this so that it is about flexibility?

I am concerned that often the ways of doing things are still championed by those who have gone through the system and come out at the other end—and I say that respectfully to those who are now retired as judges. We have to be capable of changing to deal with a changed world and the changed aspirations not just of women in the profession, but also sometimes of men in the profession and of the general public, if we want to see our judiciary change in its appearance.

It is right that we are talking first about the High Court. Currently, judges go out on circuit. It is a problem, and I do not know how to square this circle, because I think it is important that judges go out on circuit to try, for example, big criminal cases. It still matters because there is something wrong with the idea that there is a local High Court judge to deal with these things—local circuits can become too cosy and it is sometimes better that someone from outside comes in to try big, difficult cases in which a lot of public outrage might be involved. It deals with the question of whether there is too much cosiness or familiarity when the same judges are always trying the same cases.

I want to pick up the comments of my noble friend Lord Pannick. When it comes to the Court of Appeal and the Supreme Court, it is very rare that women still have very young children, but it must be possible for there to be flexibility when our children are adolescents, when they are taking exams or having time out of school. It must be possible to make arrangements so that judges can have time to deal with such domestic issues. It became an embarrassment even to raise those things at one time, but it is now possible and sets of chambers accommodate those men and women who want to have time for their families—that is how the working world has to be.

When it comes to the Supreme Court, of course it is right that at the moment, by and large, those who go to sit on the Supreme Court will be about 60—that is the sort of age we are looking at—but, as the noble Lord, Lord Pannick, said, sometimes a woman of 60 is the mother of adolescent children taking exams and going through important parts of their growing lives. It should be possible to find ways of accommodating that. There is something wrong with a system when, of 25 people consulted on the recent appointments to the Supreme Court, 24 were men. Is it any wonder that we only have one woman on that court? I can say emphatically that there are women who could have taken up those new appointments, but who were not considered. I hear retired judges, and even sitting judges, saying, “We only want the best”. Of course, we only want the best, but I want us to open up what those ideas of “the best” are. Sometimes they are defined by men who have no idea about the contribution that highly intelligent women of a different experience might bring to those senior courts. That is why it is not good enough to stick with the old system. We have to embrace change if we want to see a different kind of judiciary. We should see the Bench as a whole, and not replicate the same people with those cut from the same cloth. I strongly endorse the efforts to change the arrangements and so am against the amendment of the noble and learned Lord, Lord Lloyd.

[Lord Lloyd of Berwick]

Could I ask the noble Baroness a question? Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility, both at the High Court level and above where it is possible. The real question is whether flexibility demands part-time judges. The view of some of us is that it does not.

[Baroness Kennedy of The Shaws]

If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments. I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, “I will sit during these parts of the year and will be available to you then”. I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability.

[Baroness Neuberger]

Much of what I had wanted to say has been said by others, notably by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Jay. I chaired the Advisory Panel on Judicial Diversity and we took a great deal of evidence from both men and women who were either judges or interested in becoming judges. Of the many components needed to create a more diverse judiciary, flexible working was pretty near the top of the list. It was near the top of the list for people in their late 50s and in their 60s, who were not on the whole talking about looking after children—although, like the noble and learned Baroness, Lady Butler-Sloss, I think one ends up worrying about one’s children for ever—but about caring for elderly parents.

Increasingly, because we are living longer, people in their 60s are caring for parents in their 80s and 90s. It is likely that people who are going to work as much as they possibly can in their 60s may still need to work more flexibly than was hitherto the case because they need to look after, or make sure that somebody else is looking after elderly parents. That point was made to me almost as much by men as by women and almost as much by solicitors as by people who came from the Bar. We must make provision for flexible working given the way that our population is ageing and that we are likely to look after parents in our 60s and 70s.

Therefore, the need to be more creative and flexible in how we think about these issues has never been greater. That was felt very strongly by people from whom we took evidence. Those people, including some members of the present High Court, also said that to them flexible working was not about working two days one week and three days the next, but about working possibly for nine or 10 months of the year and simply taking slightly more holiday than other people. That holiday, which would in fact be to allow them to carry out their responsibilities, would simply have to be factored into the system. Sending out a message to the wider world that we are not prepared to consider flexible working for the judiciary when we consider it for every other profession in the country would look very strange indeed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Scott of Foscote]

My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Scott of Foscote]

I beg your pardon. That might have sounded like a peroration but I am afraid it was only a beginning. Cutting down on legal aid might be very necessary for cutting the deficit, but it must not be allowed to get to a stage where it imperils the adequacy of the civil justice system.

A plethora of litigants in person is not an ornament to a civil justice system but a reproach. I was a judge for many years, and on many occasions litigants in person appeared before me, sometimes as plaintiffs and sometimes as defendants. It is never a satisfactory means of conducting a trial. Every judge wants to come to the correct conclusion if they can, and every judge must bear in mind that one party is going to lose and must leave the court feeling that he or she has had justice. Where there is a litigant in person, the judge cannot avoid appearing to be on the side of that party. The litigant in person usually does not know how to put their case or the best arguments for the propositions that they are advancing, so the judge will step in and examine them on behalf of the litigant in person. That is fine for the purpose of obtaining justice but does no good in persuading the party on the other side, who has listened to his or her lawyers attempting to argue against the judge, that this is an appropriate means of obtaining a just result. That is the effect of producing a state of affairs in which one or other party cannot afford access to justice through the remedy of employing lawyers to appear in the case.

It is of very great importance, if the Minister is to have the power to remove areas of eligibility for legal aid or to add areas where there should be legal aid, that both those forms of executive law-making should be associated with the requirement for an affirmative resolution from each House, as the noble Lord, Lord Goodhart, suggested. Without that safeguard, these amendments are essential. If they are not agreed, that safeguard at least should be included.

[Baroness Kennedy of The Shaws]

My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.

I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.

The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.

[Lord Carlile of Berriew]

Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace for equal work had barely started when I was called to the Bar in 1970. We must, therefore, keep the door open for such issues to be added to legal aid.

The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 10th January 2012 Lords Chamber

We need a situation in which sufficient experts are available to assist both courts and parties, and for that matter to provide an element of choice, because it would be wrong if only a very limited number of people were able to give evidence. In this rather unique market, one needs a sufficient number of players. The difficulty with the situation as it is now developing is that we shall see in this instance, as in other instances that we have been debating on this Bill, the probable emergence of a two-tier justice system. In this case, expert evidence will be available only to those who can afford it. That is not consistent with equitable access to justice for all who need it and it is not consonant with the obligation to assist the court by having available the necessary evidence that will enable it to reach the right conclusions. Whatever improvements might be made to the management of the system, this question needs to be kept under review. This amendment would oblige the Lord Chancellor to ensure, as far as possible, an adequate supply of expert witnesses and that their quality is maintained. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment and want to reinforce my noble friend’s concern over creating a two-tier system in which those with money are able to access expertise and those without have difficulty.

I have reflected on the cases in which I have been involved in the past few years where legal aid has made available expert witnesses, and on the fact that I have within the past decade chaired an inquiry for the Royal College of Pathologists and the Royal College of Paediatrics and Child Health into sudden infant death—that was in the aftermath of miscarriages of justice for women who had been accused of killing their babies. What comes out of my experience is the fact that, even with the curtailment of legal aid in the way that is being envisaged by government, there will be areas where the need for expertise will be clear. The Government are saying that legal aid should be available for family cases where domestic violence might be an issue. One of the ways in which a contested question of domestic violence might arise is by having supportive evidence from professionals who have the expertise to assess whether someone has been subjected to abuse. In most of the domestic violence cases that I have done over the years, a breakthrough has been brought about as a result of the legal world understanding the nature of domestic violence through the assistance lent to the courts by experts. Those experts know, for example, that women often remain in relationships which are abusive and do not seek help because of the psychiatric state of learnt helplessness that they develop, where they cannot envisage being able ever to withdraw from the abusive relationship.

I think of the circumstances in which one has had to use experts to establish age in cases; for example, where an applicant’s claims to be under age may be an issue in the case. Establishing age is taken up by the state or by other authorities and is done through medical examination and expert evidence. Linguistics quite often arises as an issue in cases; for example, in listening to tape-recorded interviews, where one needs the assistance of people with language expertise. We are talking not just about psychiatrists or medical experts but about psychologists.

Let us think of the huge advance that was made within the justice system by our realising that some people confessed because of high levels of suggestibility in particular personalities. Let us think of the ways in which some people process information aurally, while others have real difficulty in doing so and therefore cannot respond well to questions. Those people often give answers that they later correct because they had not understood and were not able to process complicated questions easily. On issues of culture and difference of religion, I have on a number of occasions in recent years used experts to explain to the court matters of practice in certain religions.

I therefore urge the Committee to reflect carefully on curtailment of legal aid where it would be appropriate in cases to have the expertise of properly qualified people lent to the court so that the court can, in turn, do proper justice.

[Lord Elystan-Morgan]

I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.

In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty’s Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.

We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.

The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.

--- Later in debate ---

The benchmark rates are being developed by experienced civil bill assessment staff at the LSC and are based on their experience of typical hourly rates charged by experts in their respective geographic regions. The rates reflect the LSC’s experience that there is a greater supply of experts in London, which allows more competitive rates to be paid.

[Baroness Kennedy of The Shaws]

I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that—after, for example, the “sudden infant death” debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children—there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.

My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Phillips of Sudbury]

I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,

“within the resources made available and in accordance with this Part”.

If they are in conflict—namely, that the resources made available are insufficient to meet the demands of this part of the Bill—then we are in a bit of a muddle, are we not?

[Baroness Kennedy of The Shaws]

My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.

I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.

There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, “Look how many lawyers have spoken”, as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.

Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers—for example, when Treasury Counsel sought representation for different government departments—they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned—one of the most expensive barristers around. I do not think that it was Mr Blair’s own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation—the poorest in our society.

We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.

[Baroness Butler-Sloss]

My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, like the noble Lord, Lord Phillips, I came in to the law full of idealism. I have remained idealistic about the law and what its purposes are and I have remained proud of the legal system in which I work. That has not meant that I have not been a critic of the legal system. Frequently and regularly, I have been involved in criticising the law’s failures and suggested ways in which we could improve the system. From the 1970s onwards, I have campaigned for women’s issues and for greater fairness for women in the courts, hoping and working for better sentencing and so on. I have been only too aware of ways in which we have had miscarriages of justice, and I have been involved in many of those cases.

However, when you travel abroad, nothing fills your heart with greater joy as a lawyer than to realise just how wonderful our legal system is. I happen to believe that it is the best legal system in the world and that it is a source of pride to us. Yet I ask myself regularly: why is it, when we have something so precious and wonderful that is the best in the world, that we should we seek in any way to undermine it and actually take steps to destroy it?

One of the ways in which we are measured as a democracy is that we are proponents of the notion that the rule of law and democracy travel hand in hand. Britain is looked to as a great place of law, with great judges who are not corrupt, as the noble Lord, Lord Phillips, said, and great lawyers, whatever public opinion might be. When I go to the United States and speak to judges even in the Supreme Court, they say that they have sat and watched proceedings in our courts, like the Old Bailey. They say, “We have some great lawyers who are as good as some of your greatest advocates; but we do not have great lawyers in the middle ranks to measure against the lawyers that you have in the general run of courts”. It does not come without a price. We train our junior lawyers well. We give them opportunities to hone their skills. They start small doing legal aid cases, as I did, and build it up. I have to say that most of my life has been spent doing legal aid cases, and I take a pride in that. I do not feel that it is the sad end of the work that we do. I think that it is about the most precious and important work that we do.

I want to remind noble Lords why all of this matters. Only a week ago I was discussing the rule of law with people in government in Iraq. They asked, “How do we make access to justice real?”. When I am describing how our system has operated, it is a solid reminder that the rule of law is about more than passing laws and what we do in this House. It is about making it real by giving people genuine access. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, recently made a speech in which he, like the late Lord Bingham and the noble and learned Baroness, Lady Hale, talked about how we get incredible value for money compared to other places. We also have a strong sense of what the rule of law is about. The noble and learned Lord made it very clear in speaking about its three facets: making clear and effective laws, which we try to do by honing, refining and improving legislation; enforcing those laws effectively and clearly through a good legal system, which I consider the best in the world; and ensuring that the law and the legal system are accessible to all.

As the noble Lord, Lord McNally, told the press in a recent interview, like every other government department, the Ministry of Justice had to take its hit. Of course, that is done at the behest of the Treasury, which is not really looking at the principles of the rule of law. However, two-thirds of the savings being made are being paid for out of the legal aid pot. The Ministry of Justice could have been bolder about taking more money out of the prison system. Regrettably, over the past 20 years, we have seen the ratcheting up of the numbers of people going in to prison, all satisfying a sort of Dutch auction on sentencing when we really ought to be much more creative about the ways in which we deal with crime. We could have been bolder about the ways in which this requirement to reduce the bill in the Ministry of Justice was fulfilled. Instead of reducing across the board what legal aid would mean in civil law, we have seen whole areas of law being removed from its ambit. It cannot be right or good for law.

The cuts are going to dismantle two key elements of the existing system. Others have mentioned how the legal aid system came into being at the end of the Second World War. It was saying that law is not just for the rich or for those who have money, but for all of us. That is what having a mature democracy is about. What came into being at that time was essentially legal aid that started off in family law and provision for women who did not have equality of arms and for their children when it came to the increase in divorces and in family disputes. The second thing that happened in the stages of this building up of legal aid was the Legal Advice and Assistance Act of 1972, which was taken through this House by Lord Hailsham, who was not exactly a bleeding heart on matters to do with law but a very fine constitutional lawyer who understood why it was important. He introduced assistance, which was the green form scheme, to which I will turn in a minute. We are going to see that dismantled. Having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.

The 1972 Act introduced a scheme for legal advice on any matter of English law, known variously as the green form scheme or the £25 scheme. It meant that a solicitor was available to give you advice. Law centres and advice bureaux came into being around that time, too, to give advice—on welfare benefits, community care, mental health, education law and so on—on that first call, when people have anxieties about how something is affecting their lives. I know good, decent, committed, idealistic lawyers, who have not become rich but who can persistently stay in this area providing that kind of advice to people. For us to be destroying it seems to me to be crazy.

The suggestion that there is a compensation culture, I am afraid, has been swallowed by our Lord Chancellor—to my surprise, because I am a great admirer of his. With the tabloid notion that a compensation culture exists, in a society that has idealised materialism and put the greatest value on money, it is not surprising that when bad things happen to people, they will want to be compensated. If you deregulate the professions and make it possible for them to ambulance-chase, it is not surprising that you will have poor outcomes. Judges at the Old Bailey now tell me that, because of the legal aid cuts by the previous Government, they are seeing a decline in the quality of representation in the courts before them. Why is that? Increasingly, people will go in ill prepared. Cases of weight are being conducted by inexperienced people. That happens if you are paying people very little money for doing a professional job.

I really think that a mistake is being made in these proposals. I urge the Front Bench, which I know is concerned about these matters, to think again. This is a precious part of our legal system and the consequences of the cuts may be far greater than anyone imagines.

Civil Legal Aid

Baroness Kennedy of Shaws Excerpts

Thursday 19th May 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, my noble friend Lord Haskel asked why these cuts were taking place. I want to quote to your Lordships something that Jonathan Djanogly, the justice department Minister in charge of legal aid, said at the Conservative Party conference last year. It shows an attitude to legal aid which is to misunderstand it. Mr Djanogly seemed to suggest that legal aid might be a good way of keeping busy women who wanted to return to work after maternity leave. He said:

“Legal aid can be a good filler for those lawyers out of work or women who want to get back into the legal job market after having children”.

Mr Djanogly spent 21 years in practice with the wealthy international commercial law firm SJ Berwin and earned sums which we associate with top bankers. It may well be that lawyers such as he have no understanding that someone would choose to do legal aid work not because they are looking to fill in, not because they have come back after having babies, as I did, but because they chose from the beginning to give voice to those who are usually voiceless within the system.

I have spent my life doing legal aid work and I have done it through choice. Chambers such as mine win the pro bono awards every year despite the fact that all of our lawyers are legal aid lawyers. Why do they win the prizes for pro bono? It is basically because their life experience in the courts gives them necessary expertise in these areas, so that when they come to do pro bono they are not filling in—or coming like a grandee to offer kindness and charity to the poor—but coming with expertise on welfare rights, employment and what it is like to be poor and on the margins. The starting point is wrong and misunderstands the purpose of legal aid. The purpose is set out in the 1949 legal aid Act: to ensure that no one will be financially unable to prosecute a just and a reasonable claim or defend a legal right.

As I have previously told the House, I chair Justice. We have a number of concerns with which I can deal briefly because most of the other contributors to the debate have pointed out the things that I wanted to say. I reinforce the view that the cuts to the scope of legal aid will be particularly damaging to social welfare law, employment, housing and education for the most disadvantaged. I am concerned about how that will impact on those with special needs, the mentally ill and so on.

We have to test and question some of these ideas in the House because legal aid will not be well defended by the public. Generally, if it is health or education, the public will rally, but they will not do so around legal aid because they think that it is about fat-cat lawyers. The reason for that is a malevolent combination between sometimes government Ministers and the media. It has never been my experience that fat-cat lawyers do legal aid; the vast majority who do are usually committed, decent, good people who are fairly slender and certainly not living high on the hog.

A number of the ideas are certainly worth exploring—for example, the idea of a call centre as the first point of access for the many people who do not know how to start finding a lawyer. However, it should be piloted first because there is a real concern that it will fail to deal with those who have low communication skills or complicated cases, as others have said.

I am also worried about the removal of legal aid from matrimonial cases because of the inequality of arms that it will create for women. So often in the courts already the male spouse is privately represented and the female spouse is legally aided and represented by a legal aid lawyer. She will be cut out and, as the noble Lord, Lord Thomas, said, this may well drive people to make allegations of domestic violence. Even where there has been some domestic violence it is usually not pursued for strategic reasons, because it would not be good for the children to hear rehearsed the details of what happened inside the relationship between the parents. That might lead to undesirable consequences.

I am also concerned about clinical negligence cases. Given the high initial cost of establishing liability, removing legal aid completely will mean that poor people who suffer terrible things within our hospitals will not be able to sue.

The proposals are rushed and, rather like the National Health Service proposals, they need to be given time. I ask for a little let-up and that we examine the proposals before rushing into a folly that will have serious consequences for the poor.

European Convention on Human Rights

Baroness Kennedy of Shaws Excerpts

Thursday 19th May 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, my noble and learned friend Lord Irvine is to be congratulated on the Human Rights Act, which he introduced when Lord Chancellor, and which introduced the European Convention on Human Rights into domestic law. I particularly want to commend this aspect of my noble and learned friend: he did so and then was the Act’s champion in the years thereafter, sometimes in the face of a touch of authoritarianism that came from Home Secretaries, even those whom he sat with in Cabinet. He was a great liberal Lord Chancellor, and I pay tribute to him for the role that he played.

My noble and learned friend reminded us of the gear change that took place back in March 1993 when John Smith gave the Charter 88 lecture, which I had the great privilege of chairing. It was a gear change because John Smith committed the Labour Party then to this change in law and its ability to protect our rights.

When my noble and learned friend Lord Irvine introduced the Second Reading of the Human Rights Bill into this House in 1997, he indicated the weakness of the traditional position of our unwritten constitution. He explained that it gives no protection from the misuse of power by the state, nor from acts or omissions of public bodies that harm individuals in a way that is incompatible with their human rights under the convention. Of course, he was right. I now chair Justice, the lawyers’ organisation that has membership across all parties and none, which has long supported the incorporation of the convention and supported the Human Rights Act. Some 11 years on, it is our view—it is certainly mine—that our constitution is immeasurably the better for that incorporation.

These positive rights are not alien imports, as my noble and learned friend has said; they are largely a distillation of English common law, often misunderstood by many in the public and in the Conservative Party. It was about reintroducing many of our own principles into European law. It was an organised code, drafted by lawyers from our own Foreign Office and by our own parliamentarians. There is a great pamphlet that I recommend to the House, written by Peter Oborne and Jesse Norman—not the opera singer but the Conservative Member of Parliament—describing how the Human Rights Act is rooted in common law.

The first major case in which our domestic judges seriously grappled with this changed world was the Belmarsh case. The judgments of the House of Lords in that case provide a revealing comparison with the infamous decision in Liversidge v Anderson, a case during the Second World War. The point was almost the same: the rights of those who faced internment or imprisonment without trial. Mr Liversidge was a Jewish émigré whose original name was Perlzweig. Because he had changed his name, he became a subject of suspicion and ended up being incarcerated without trial. The earlier case is famous for Lord Atkin’s dissenting speech where he talked about the rule of law and justice prevailing even amid the clash of arms.

The majority of the then House of Lords saw no problem in depriving people of their liberty on the say-so of the Home Secretary. In Belmarsh, though, under the Human Rights Act, the judiciary, led by Lord Bingham, carefully compared what the Government had done with the provisions of the convention and found it wanting. We saw how the common law has been enriched by the incorporation of the European convention.

In this way the Belmarsh judgment demonstrates what my noble and learned friend Lord Irvine had talked about, and talked about again in his Tom Sargant memorial lecture in 1997 where he spoke of the Human Rights Act providing a citizen with the right to assert a positive entitlement and for it to be expressed in clear and principled terms. The incredibly positive thing is that it is provided not just to citizens but to any human being. As the right reverend Prelate says, the Act recognises the moral significance of every person, not just citizens.

The convention has proved its worth in the intervening decade. It has encouraged our judiciary seriously to hold the Government to account, particularly with regard to their approach to terrorism. I see that from my own experience in those cases. Indeed, the European Court established by the convention has given the domestic judiciary a lesson in how to interpret the convention in key decisions, where their own domestic decisions were too deferential to the Government of the day. Those included the retention of DNA taken by the police from innocent people; the misuse of police powers under the Terrorism Act, in the case of Gillan; and the extent of control orders, in the case of A. They are all cases where the judges of the European Court were bolder than our judiciary, which is always being complained about. In my view, the European Court was correct there.

In a small number of cases, the jurisdiction of the European Court has been challenged as having gone too far, and some of them have been mentioned today. There has been considerable adverse comment against the decision in Chahal that the prohibition against torture should extend to a prohibition against a state effectively conniving in torture by sending someone back to a state where there is a reasonable likelihood that they will be tortured. In the light of what we now know about the US extraordinary rendition programme, how right that decision was—and how shameful that the UK Government thought to intervene in another case, Saadi v Italy, to overthrow the principle.

The Arab spring has shown us the true nature of a number of the regimes to which the UK wanted to expel people. For example, there can now be few illusions about the regime of Colonel Gaddafi or about the true nature of his English-educated son. Yet the UK wanted to close its eyes to the reality and send people back on the basis of undertakings that were likely to be of little worth. It took the courts to express scepticism of the value of undertakings from such sources in the cases of AS and DD, and in a case that I was involved in to do with possible undertakings from Pakistan.

The European Court of Human Rights is an important part of the apparatus of the ECHR. Its doctrine that the convention is a living instrument has kept it up to date and avoided some of the absurd originalism associated with the American constitution. Its value has to be recognised. I accept that there are problems around the issue of the margin of appreciation. I hope we will be able to visit that in our commission, which I sit on and which will look at how the court’s decisions should deploy that doctrine. Another issue concerns judicial dialogue. I hope there can be more of that in the case of Horncastle, which is currently before the European Court’s final chamber. It is a case that we should follow with some interest.

Finally, the convention is to be welcomed. The new commission that will look at a British Bill of Rights recognises that there is a guaranteed floor—the ECHR. We as a country have gained immeasurably from the way in which the Human Rights Act has brought it more visibly into our constitution. In proclaiming his crucial role in this process, I salute the noble and learned Lord, Lord Irvine.

Justice: Judicial Appointments

Baroness Kennedy of Shaws Excerpts

Thursday 17th March 2011 Lords Chamber

[Lord McNally]

My noble friend makes a correct assessment of the figures for judicial appointments. The meeting last Monday was my first with the diversity group, and I made it very clear that as far as I am concerned, the concept of trickle-up is not a response to the diversity problem that we face in the judiciary.

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Morris of Aberavon]

My Lords—

--- Later in debate ---

[Baroness Kennedy of The Shaws]

Given the nature of the issue, I think that giving way was appropriate.

I remember that when I started at the Bar there were sets of chambers that used to say, “We don't take women”. We then made a great advance where chambers would say, “Women? We've got one”. We now have one woman in the Supreme Court. That has been the situation for seven years. It is not good enough. What is being done? There are four wonderful women in the Court of Appeal. Why is not one of them, such as Dame Mary Arden, being promoted to our Supreme Court?

[Lord McNally]

My Lords, I understand that there are two imminent vacancies to the Supreme Court. I am sure that everyone will be watching as to what happens with those appointments. The noble Baroness touches on another point. The professions themselves— the Bar, the Bar Council, the Law Society and their members—should show leadership in encouraging more women into the legal profession.

Parliamentary Voting System and Constituencies Bill

Baroness Kennedy of Shaws Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Soley]

My Lords, I rise in support of my noble friend Lady Hayter. Let me begin by perhaps anticipating the Minister’s response. Despite his commitment to his party as part of the coalition, he will say that it is not possible to do this in the Bill, that the Electoral Commission would not approve and that these young people would not be able to vote in the referendum anyway because the Bill will not allow time for that. He said much the same about the right to vote for prisoners. My reason for rising to speak is to say that this argument is based on a fallacy and that this Bill ought to be something much wider. It ought to be about constituency and voting reform generally, but it is not. It was put together in order to preserve the coalition. That is what it is about. It is concerned with enhancing the coalition’s chances of staying in government for a bit longer. I have to say that that is not good enough.

If the Minister thinks that I am the only person who is saying that the coalition Government are not allowing time for the Bill—they ought to allow time, so that we could consider the wider issue of votes at 16, which is his party’s policy, or indeed votes for prisoners, which is also his party’s policy—let me quote from a letter sent to me and to others by one of his honourable friends in the House of Commons, Andrew Turner, the Member of Parliament for the Isle of Wight. He says the following in relation to a different part of the Bill:

“Debate in the Commons was so curtailed that I was unable to speak on this subject during Committee Stage and only for five minutes during Report Stage”.

In a sense, that sums up the problem. There is a case for votes at 16, although I will touch on that only briefly, since my noble friend summed up my position in her remarks, just as there is a case for votes for prisoners following the European Court of Human Rights ruling. However, there is no room in this Bill for doing things easily unless—this is the point—the Government accept that the legislation ought to be about reform and not just about preserving the coalition’s position.

Perhaps I may deal briefly with why votes at the age of 16 are important. For many years I have felt that, if you can serve in the Armed Forces, you ought to be able to vote. Also, as my noble friend pointed out, if you pay taxes, you ought to be able to vote. However, the important point concerns the Armed Forces. Secondly, it should be understood that many young people start to get interested in politics at this age. However, if they are not allowed to express that interest, if anything they are put off later. It is no accident that in this Chamber either last Friday or in a previous Youth Parliament, I cannot remember which, the young people voted in favour of votes at 16. I might add something that will encourage Members on both sides: they also voted by a majority of between 60 and 64 for a largely appointed House as opposed to an elected House. There are all those wise young people out there, wanting to vote and to keep an appointed House because they recognise some of the strengths of that. The arguments in favour were interesting because the young people were wise enough to support the concept of, at least, a largely appointed House.

I suppose that we all think of our own backgrounds. My noble friend was remembering where she was for her first election, albeit with some uncertainty. I remember mine clearly. It was in 1955. When I had campaigned in the previous election, I was belted round the ear by someone with a rolled-up poster who told me that I was too young to be thinking about such things. All that did was to reinforce my view that I ought to think about it a bit harder, if only to deal with people who belted you round the ear with a rolled-up poster. There is a genuine interest. Certainly, I was very interested in what was happening internationally. We had come out of the Second World War, which had influenced me very much, as it had so many of us who were born, as I was, just before it. If you grow up under the shadow of dictatorship, you know the importance of democracy. That argument was profoundly important to me. It always has been and still is.

I should not need to exercise these arguments with the Minister, because his party supports this policy and I believe that I am right in saying that he does. The only thing standing in the way is this attempt to get through a Bill that is about the survival of the coalition, not the reform of the parliamentary system. The Government really need to do better on this. It is just not good enough to duck this issue in the way that he ducked the issue of votes for prisoners.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support my noble friend Lady Hayter. I came to this issue rather sceptically but changed my mind when I was chairing the Power inquiry, as we took evidence from around the country and heard from young people and their teachers. One thing that this House should have in mind is the alarming way in which we in this country are losing the habit of voting. What we are finding is that young people, if they do not establish a habit of voting, do not turn to it. People would say to us, “Well, they soon start voting once they start having children of their own or a mortgage, or when they start paying tax”—often, they were Members of Parliament. Yet the reality is that, if the habit is not established before, very often people do not end up voting at all.

Teachers were telling us that already, in schools, there is talk before age 16 about why the vote is so important and about the history of the vote. Then there is a gap, where a substantial number of our young are still not staying on at school to 18, so when they leave school there is a period of non-participation in the public arena. They do not vote, so they never establish the habit of voting. We should move from knowing about voting at school—understanding its history and its importance in our firmament and why it is at the heart of our democracy that people should vote—to harnessing that while people are still young and interested. That is vital.

Hearing from young people who were clearly interested in how their country worked and in the issues of the day, yet then hearing from teachers about the terrible loss of interest between the ages of 16 and 18—sometimes, it is as long as four years before these young people get the chance to vote—was a lesson that convinced me that people lose the habit of voting. We should take this opportunity to reform the system as soon as we can. I know that many people, certainly among the Liberal Democrats, share this view. We should be harnessing that interest in politics before it is lost. Now is a good time to do it, when we are in the process of engaging in some reform of our electoral system.

[Lord Anderson of Swansea]

My Lords, my noble friend Lady Kennedy referred to instilling the habit of voting. My fear is that the subject of this referendum will instil the habit of not voting. I certainly do not detect any overwhelming interest from the younger generation in the alternative vote or in any other technical form of voting in this country. If they do not vote on the first occasion when they are given the opportunity to do so, the danger is that they will form a habit of not voting. That is the real problem.

The genesis of this whole thing is the Faustian pact between the Liberal Democrats and the Conservatives. The Liberals have this magnificent obsession with structures. It is not an obsession that a great number of people in this country share but they consider it the unfinished business of Lloyd George. They were prepared to do anything to change the voting system, while allowing the Conservative Party to have free rein in all its attacks on our welfare system.

I cannot imagine young people for a moment being interested in going to this vote. From over 30 years as a Member of Parliament in the other place, trying desperately to get people to vote in difficult parts of the constituency—we sometimes had, alas, a very sad turnout—I cannot imagine even a tiny proportion of those individuals bothering to vote and, if they do not, I certainly see no serious interest or enthusiasm among younger people. That is my starting point.

However, I congratulate my noble friend Lady Hayter. She led me along a silken path with her felicitous words until I was almost persuaded; alas, not quite. I have form in this, because many years ago I promoted a Private Member’s Bill in the other place to reduce the voting age from 21 to 18. I was before my time, as it were, because it was before that view became a consensus. Sadly, the Bill was talked out, but there was a very logical case to move from 21 to 18 at that point because, about then, the legal age of majority had been changed—I believe that it was by a royal commission—and it was wholly consistent with that that the voting age should also be reduced from 21 to 18.