Crime and Courts Bill [HL]

Lord Beecham Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Beecham]

My Lords, as many speakers in this very thoughtful debate have implied—notably my noble friend Lady Smith—for all the Bill’s positive features, it is yet another example of the Government’s recidivist tendency to legislate on the hoof. In this case, it is a demonstrably unshod hoof. From the crass failure that my noble friend identified to provide a framework document for Part 1 of the Bill in relation to the National Crime Agency, to the uncertainty about when we will be informed of the outcome of consultation on the community sentencing provisions and the response to that consultation, let alone details of what the Government plan to include the Bill, to the extraordinarily wide powers to amend any enactment contained in Clause 2(4), which deals with counterterrorism, through to the uncertainties about the financial implications of the establishment of the National Crime Agency, the latter’s relationship—touched on by the noble Lord, Lord Ramsbotham—with the police and crime commissioners, the powers of the NCA director, the recurrent issues of accountability not only of the NCA itself but of immigration officers under Part 3, the implications of the abolition of the police improvement authority, the lack of clarity over details of the opposed new offence of drug-driving, which all of us would welcome in principle, and the reliance yet again on regulations as yet unseen instead of primary legislation, the Bill falls lamentably below the standards that your Lordships’ House and the British people are entitled to expect, especially given its importance in relation to our system of justice.

It is as well, then, that the Bill starts and will finish in your Lordships’ House where, thanks to the presence of so many former senior members of the judiciary, experienced legal practitioners at the highest level—among whom I am not included—and many other Members with a passionate concern for liberty, accountability and due process, it can expect to receive more, and more effective, scrutiny than the whipped procedures of the House of Commons all too frequently allow. I have some sympathy with the noble Lord, Lord Henley. Continuing our Dickensian dialogue—perhaps I should say “monologue”—I rather see him today in the role of Sergeant Buzfuz, briefed not by the plaintiff on a breach of promise action against Mr Pickwick but by the Home Office and the Ministry of Justice, today’s combined equivalent of the Circumlocution Office. We may, however, return to the question of breach of promise—breach of electoral promise—when we come in due course to the Justice and Security Bill.

I now address those issues in the Bill which fall primarily within the responsibilities of the Ministry of Justice. In relation to creating a single county court, my considerable concern is the venue. For most purposes, as we have just heard, this is at present based on one or both parties having a connection with the geographical area of the county court in which proceedings commence. I hope that the Minister can assure us that this will remain the case and, if it is, how that can be secured. To pick up the point raised by the noble Lord, Lord Elystan-Morgan, will he also assure us that we will not see a further rash of closures of county court facilities for the reasons that he gave? No doubt corporate clients would find it very convenient to choose the venue at the expense of the interests of individual claimants.

In passing, it is worth noting that the ministerial statement heralding this change also announced increases in the small-claim limits in the county court below which it is impossible for a successful litigant to obtain his costs: first to £10,000, then to £15,000. This is not in the Bill but it is connected to the question of access to justice and it would be a grave blow to claimants and a boon, no doubt, to the insurance industry, which of course is such a generous donor to the Conservative Party.

On family courts, the Bill carries forward the generally well received recommendations of the Norgrove report. I have one particular concern because the Bill is not clear on this: will a single lay magistrate, who counts as a judge in the Family Court under Schedule 10’s insertion of new Section 31Y in the Matrimonial Proceedings Act, be empowered to determine contested cases? That would perhaps be less than desirable. I raised the matter in discussion with the Bill team and I do not know whether the Minister has yet ascertained whether that would be the case.

Mentioning the magistracy brings me to a slightly different point, one hinted at by the noble Lord, Lord Elystan-Morgan. Last night I was in discussion with the lord-lieutenant in my area, who expressed considerable concern on his part and, as he put it, on behalf of his brother lords-lieutenant, about the position within the magistrates’ court system, where the feeling is that lay magistrates are increasingly being displaced by full-time paid district judges. I confess that I have not appeared in a magistrates’ court for nearly 20 years, and the role of the justices’ clerks—as they used to be called; I am not sure that the appellation is still relevant—seems to have changed. Apparently the clerks are no longer responsible to magistrates’ courts’ committees but, increasingly, seem to be responsible upwards, to the Ministry of Justice. As the magistracy becomes more professionalised, I suppose that that is likely to be increased. There is a concern, which was raised in the debate on the Queen’s Speech by a Member opposite, that local justice might be somewhat imperilled.

In relation to judicial appointments, generally we welcome the steps to promote equality and diversity. It is worth proceeding with the concept of part-time appointments in the higher courts, recognising that there may be a risk, as some of your Lordships have indicated, and practical difficulties. It is not necessary to assume that if things turn out to be less effective than envisaged we are stuck with the system indefinitely. I suggest that it would be a matter to be kept under review, and that could be provided for in the legislation in the first place. However, we are so far behind in promoting equality and diversity that it seems worth while at least to attempt to see whether that particular provision could improve the position.

It was interesting to hear a number of Members of your Lordships’ House—my noble friend Lady Jay, the noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf—all expressing concerns about the desirability of the Lord Chancellor having a vote in the selection of the president and deputy president of the Supreme Court. I share those concerns. Proceeding in that way may seem questionable, as we may be thought to be bringing the Executive too close to postholders who ultimately may have to sit in judgment on the Executive. I do not mean just the Lord Chancellor as an individual; I mean the Government of whom the Lord Chancellor is obviously a member. It is also not clear to me whether the powers of the Lord Chancellor to prescribe regulations about appointments in consultation with the Lord Chief Justice and others is or should be absolute or whether there is to be any parliamentary scrutiny—not of the appointments but of the regulations that will govern those appointments.

On Clause 22 and the question of filming or recording proceedings, we welcome the proposals for Court of Appeal hearings and remarks on sentencing in Crown Courts to be broadcast, subject always to the decision of the trial judge. I think that there would be a concern, which I would certainly share, if it were envisaged that those two categories should be expanded and other areas of the court’s activity made subject to broadcasting. I endorse Liberty’s suggestion that these two proposals should be embodied in the Bill—possibly with a sunset clause to allow the position to be evaluated after a period—and that in any event any extension of categories should be subject to primary legislation and not implemented through regulation.

On Clause 23, which deals with community sentences, simply giving the Secretary of State the power to make regulations for or in connection with non-custodial sentences is unacceptable, particularly in the light of the paucity of information currently available and the length of time before it will become available, to which I and others have referred. Moreover, there is a question about how the whole clause stands with last week’s White Paper on anti-social behaviour, which we have not yet had an opportunity to debate. That whole set of proposals needs to be thoroughly debated and we need to know exactly what the Government have in mind before we can make a judgment about it.

On the provisions relating to immigration under Part 3, my noble friend Lady Smith indicated a number of concerns that, again, I share. The first relates to the abolition of the right of appeal against refusal of entry clearance to the UK under Clause 24, which undoes the Labour Government’s changes in relation to family visit visas. As Liberty points out, this would create great difficulties in relation to, for example, important family events, weddings or funerals or for visiting the sick. My noble friend Lord Judd quite rightly raised the apparent bypassing of family values on the question of family visit visas.

There is also a potential problem in relation to Clause 25 concerning appeals against a decision to vary a person’s leave to enter or remain in the UK when he or she is outside the jurisdiction when the decision is made. That could make it extremely difficult for the right to be exercised.

Under Clause 26 and Schedule 14, we have the conferment on immigration officers of very wide powers without an evident framework for accountability such as, as in the case of the police, the Independent Police Complaints Commission. Moreover, paragraph 380 of the Explanatory Notes indicates that the clause confers on the border agency’s chief operating officer the power,

“to authorise applications from immigration officers for the purpose of investigating organised immigration crime”,

without defining the latter term. What is “organised immigration crime”? We need to be clear about that. In any event, the powers conferred by Clause 26 do not seem to be limited to those purposes. Again, we have wide-ranging powers without any real boundaries or constraints.

Clause 27 deals with drugs and driving, on which the noble Baroness, Lady Meacher, spoke with such effect during the debate on the Queen’s Speech. Like others, I look forward to hearing from her again in Committee. The Government must address the concerns that she expressed and that have been expressed by Liberty, the British Medical Association and, as we have heard tonight, other noble Lords about the practical implications of a widely drawn offence. It must surely be confined to substances that are likely to affect driving ability and which the user knows, or ought to know, are likely to have such an effect and, as we have heard, can be measured.

Other matters may be raised in the course of the Bill’s progress, and one that may make an appearance is metal theft. That was debated at some length in the very late hours during the passage of the legal aid Act, as some noble Lords will recall, and the Government indicated that measures would be brought forward. I would have thought that the Bill would have provided an opportunity to deal with this matter of considerable concern that affects public safety as well as having considerable financial implications. We may take the opportunity of tabling an amendment to that end.

The Opposition look forward to working with the Government and Members from all parts of the House to improve a Bill that, in some areas, introduces welcome reforms but in others threatens to undermine, to some extent, parliamentary and public accountability and infringe civil liberties. It will be for your Lordships’ House to improve the Bill and send it to the House of Commons in a form that we can only hope will represent an improvement and which will allow us to achieve a consensus on those matters on which, broadly speaking, we share a civilised view but that the Bill does not quite match in the reach of its provisions.