EU Referendum and EU Reform (EUC Report)
Lord Boswell of Aynho Excerpts(8 years, 5 months ago)
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Lord Boswell of Aynho
That this House takes note of the Report from the European Union Committee The EU referendum and EU reform (9th Report, Session 2015–16, HL Paper 122).
Lord Boswell of Aynho (Non-Afl)
My Lords, alongside The EU referendum and EU reform report, the House will also be debating my committee’s report, The Process of Withdrawing from the European Union, and the report from the Science and Technology Committee on EU Membership and UK Science, to which the noble Earl, Lord Selborne, will speak. Our committees have a history of harmonious collaboration on European matters, and I had the privilege, a generation ago, of serving on a research council under the noble Earl’s chairmanship. I look forward to his contribution with anticipation. I record on behalf of the committee our thanks to its impeccable staff and to all our many correspondents and contributors.
I am delighted that we have the opportunity to debate these reports before 23 June—referendum day. The process that has led up to that momentous decision has, of course, been a continuing preoccupation of the EU Committee. At the end of the previous Parliament, we reported on the coalition Government’s balance of competences review, highlighting in particular the Government’s failure to provide an overarching summary of their findings; a summary that might have driven, or at least influenced, proposals for EU reform. Then, last July, we published a short report warning the incoming Government of the need to approach their negotiations inclusively, and in particular to have regard to the importance of parliamentary scrutiny. The problems we explored in these two reports were never fully tackled and have played into the end game on which we now report.
Before I delve further, I should emphasise, or re-emphasise, our committee’s settled view that it is not for us to take a view on whether the UK should remain in or leave the EU. That critical decision is for the British people next week. Our remit is to scrutinise Her Majesty’s Government and to interrogate the approach which—in distinction from that of the political campaigners on both sides of the campaign—they are adopting in presenting their official case for remaining in the EU.
That is the basis for our current report on EU reform in which we analyse the process whereby the Government decided on their four negotiating “baskets” of sovereignty, fairness for the eurozone’s ins and outs, migration and competitiveness. These negotiating objectives were not confirmed for several months following the publication of our report in July 2015. Perhaps it was only pressure from Europe that crystallised them in the form of a letter from the Prime Minister to President Tusk last November.
Chapters 2 and 3 of our report dissect the rather opaque process that led to the publication of this letter. It is history now, and I shall not dwell further on it. It was the so-called “new settlement for the United Kingdom”, agreed by the European Council last February, that in effect fired the starting gun for the referendum campaign. Chapter 4 of our report analyses in some detail this new settlement, in which the Government sought to achieve their reform objectives.
In broad terms, we found that some concrete progress had been made, reflecting perhaps a welcome degree of realism in the approach of all parties. The new settlement takes the form of an international law decision. Given the known difficulties of treaty change, and the explicit buy-in of all member states and the European institutions to this process, we accept this as a realistic and viable approach to delivering commitments to reform.
If the UK votes to remain, we will need to pursue further our detailed scrutiny of these provisions; if we opt to leave, the deal automatically falls away. The assurances received on the UK opt-out from the commitment in the treaty to ever closer union, whatever their intrinsic merits, appear to signal conclusively an end to any ratchet process leading towards greater centralisation. We concurred with the Foreign Secretary, who told us in evidence that we have “reached the high-water mark” and the intense involvement in our national life which,
“irritates so many people in this country, is a thing of the past”.
Under the same sovereignty heading, the new settlement also sets out an enhanced role for national parliaments by means of a so-called red card—that is, power for a 55% majority of national parliaments, acting collectively, to stop an unwelcome proposal. We have no objection in principle to this, but I remind noble Lords that my committee has also consistently argued for what I have called a “forward gear”, involving positive upstream engagement with European policymaking, whether it is better regulation, simplification of laws or more widely. Hence, in conjunction with a number of other national parliament chambers, we as a committee pioneered last year the first European green card on food waste.
On the crucial but legally and technically complex issue of fairness between eurozone and non-euro states, we see the terms of the new settlement as providing welcome clarity and assurance that the interests of both groups will be safeguarded. We are also not alone among member states in wanting a more competitive Europe, and we have the European Commission as allies in this. We welcome the agreement to press for better regulation, including an annual progress report, and the intention to reduce administrative burdens, particularly on SMEs, as well as to press forward an active and ambitious trade policy. We have of course heard similar aspirations in the past and we shall have to hold the European institutions to account for them.
The final main “basket” of the negotiations relates to migration, or free movement. Self-evidently, this is the one with the greatest political salience. The analysis in the report speaks for itself, and, in light of more recent controversy, I do not intend to rehearse it now.
I turn to our short report on the process of withdrawing from the EU. This was based primarily on evidence provided by two experienced and expert lawyers, Sir David Edward and Derek Wyatt QC, supplemented by our excellent internal committee legal advisers. The report is largely self-explanatory, but if I may summarise, our key finding is that Article 50 of the Lisbon treaty provides the only means of withdrawal consistent with EU and international law. Withdrawal is final only once a withdrawal agreement enters into force, so a member state that had given a notification under Article 50 would be legally empowered to reverse that decision before this stage.
Lord Lawson of Blaby (Con)
I was slightly puzzled when the noble Lord said that Article 50 was the only means. Is he saying that the 1975 referendum, when the Lisbon treaty and Article 50 did not exist, was a complete fraud because we could not have left anyway?
Lord Boswell of Aynho
My Lords, provisions in the Vienna convention on treaties would enable a member state to withdraw from any international obligation by consent of the parties involved. As the noble Lord rightly said, the Lisbon treaty followed long after the 1975 referendum, in which we probably both participated. In order to be consistent with European and international law—which, of course, are obligations for Ministers as well—the treaty confines any action to the terms of Article 50, under which it would have to be carried out. I hope that that is helpful to the House.
Notwithstanding this legal argument, which I have some diffidence in opining, it has not escaped us that there would of course be political consequences on both sides of the argument in doing so. On the practicalities, the process of negotiating withdrawal would be complex, involving, among others, vital issues of trade policy and complex issues of rights acquired by individuals, as well as the need to review our existing body of law. It can be done, but it will take time—probably several years—to complete.
Lord Spicer (Con)
On Article 50, surely force majeure will come into play. Is it realistic to suggest that a nation state could be forbidden from leaving the European Union if it wished to do so?
Lord Boswell of Aynho
My Lords, the question is not whether a nation state would be inhibited from doing so, because the Lisbon treaty specifically empowers and provides a process for it. The question for the noble Lord and this House as a House of law and proper procedure is how we may meet our international obligations if the nation decides to initiate that process—no more, no less.
I am conscious—although it is beginning to seem that the note I had marked may be a little obsolete in the circumstances—that I have yet to address the more overtly “political” issues which loom large in all our minds as we approach the referendum. Reverting to our report on EU reform, perhaps the key question is: what happened to the new settlement? A little like the dog that did not bark in the night, its almost complete absence from the current debate on EU membership is telling. This was the agreement on which, we were told, the Government’s support for EU membership depended, yet it has had almost no influence at all on the referendum campaign.
This takes us back to our starting point: the Government’s failure initially to provide an overarching assessment of the findings of the balance of competences review; the failure to offer a considered, evidence-based diagnosis of what, if anything, is wrong with the EU; and what the real costs and benefits are to the UK, so that we can understand what needs to be fixed for the UK to remain a member. If the British people need anything over the next eight days, it is real, objective evidence, on the basis of which they can make an informed decision.
This brings me to my final point. As a committee, we have tried our best to fulfil our duty in tackling complex technical issues around the process leading to the referendum, and we have done that in our traditionally non-partisan style. Yet we also stressed that the Government’s case for EU membership needed to be an inclusive one, crossing party-political lines and speaking to all the peoples of the United Kingdom. We suggested that it needed to be based on a positive vision of the UK’s role within a reformed EU, and we warned that a campaign based on narrow national economic self-interest, alongside mere fear of the alternatives to membership, might be insufficient. Noble Lords may wish to reflect on whether our plea has been listened to, or whether our warning has become a reality.
The decision in eight days’ time will be as much of the heart as of the head. If the Government are to persuade the people to endorse their recommendation to remain in the EU, they need to focus on facts, but also appeal to the feelings and ideals of the voting public. It is not too late, but in that somewhat sober context, I beg to move.
Lord Boswell of Aynho
My Lords, the House will be grateful to the noble Lord, Lord Faulks, for his generous response to our three committee reports collectively, and for the tone in which he explained the Government’s position. I was rather moved by his final remarks, although that will not shake our formal position of independence on this issue.
As the noble Lord said, this has been a very remarkable, extended and unusually balanced debate. The epithets I will attach to it are “rich” and “reflective”, because it has gone through a very wide area. As I indicated at the beginning, I have welcomed the contribution on science, which has added to the debate. We have ranged widely and properly through subjects such as, from the noble Lord, Lord Hastings, the position of the poorest countries of this world in relation to this, which we so often forget, and, from the noble Lord, Lord Low, disabled people. This matter touches us all.
Inevitably, I will concentrate more on the political, diplomatic and legal matters. There will not be time to comment on everyone’s contribution. If I may single out without invidiousness the noble Lord, Lord Howell, who often takes the House to another stage of perception towards the future, he chided us a little bit—and rightly so—for perhaps not giving a full flavour of that vision, although we said that the Government needed to do that. We certainly do have a contribution to make in this House and through our committees in taking the argument further, whether we stay in or move out. One of our sub-committees has very recently reported on digital platforms—one of the subjects that the noble Lord specifically mentioned. As it happens, its last report was on the control of pilotless drones, so we are keeping up with this. In fact, we took some of that sub-committee’s observations to an international meeting only this week, where we shared them with colleagues. So we will not mess about with that; we will do our wider duties as well as the more particularly political ones.
I will turn to two areas that I think have not had quite enough attention in this debate but which reflect, in a sense, the remit of our committee. Of course, we report to this House, but one area which is certainly not our direct responsibility but which we should bear in mind—some noble Lords referred to it—is the question of our colleagues, the other 27 members of the European Union. Occasionally, some of the public comment here suggests that we operate on our own without reference to them, but I will pick up, on this occasion entirely with approval, the remarks of the noble Lord, Lord Pearson of Rannoch, who said that we are not their enemies. Of course we are not their enemies. Indeed, we do not want to make them our enemies; we want to have a good relationship.
If I may refer again to the international conference I have just attended on behalf of the House with the noble Baronesses, Lady Falkner and Lady Armstrong, who both contributed so thoughtfully to this debate, we had all the other 27 member states represented, in one form or another. Though they did not make large, pro-forma pronouncements, the number of them who came up to us in the margins and said, “What is going on? We are concerned about this. We are concerned for ourselves as well as for you”, was quite remarkable.
The second constituency I am conscious of—and while I do not expect people to read every word of our report I hope that some of the messages will distil—is the wider constituency of the electorate who have to make this decision next week. We have a lot of people who yearn for clarity, objectivity and a degree of sensible, sober presentation, and, as a number of noble Lords have said, they do not feel that they have entirely had it yet. I would like, in concluding this debate, to draw out two areas.
The first is the complexity side of all this, perhaps best expressed in our short report on withdrawal. In looking at that, I would say to people who have not read it, “Just read the appended Article 50”. If that is too long—and the number is just a coincidence—just read Sir David Edward’s evidence at paragraphs 49 and 50, the latter of which has been referred to by a number of noble Lords, including the Minister. This is a very complicated process. It involves us all. We do not always remember that it involves us all. I have declared, although I did not mention it this afternoon, that I am in receipt of payments under the common agricultural policy. In that case, there does not appear to be a conflict, because in fact the leave campaign has undertaken to restore those payments. I will leave that one for contemplation.
Let me be a little more down to earth. I do not often bring out a visual aid, but here is a European health insurance card. I recently renewed this. It was done with huge efficiency online and came back virtually by return from the Department of Health. It tells me that I am covered until 18 April 2021. Well, I do not know whether I am or not. I do not know whether I would be told if I was not, or whether the UK Government would pay for me to be even if it were not part of a European scheme. I just mention that because it is a small, hands-on example of the complexity of this.
I can understand, in a sense, that that is adding to people’s difficulty in making their decision. We have had some indications of passion and vision from a number of noble Lords, including the Minister. There comes a time when you move from the tabloid headline or the saloon-bar comment, or the fact that you wrote to TripAdvisor after you had had a bad night. That is one area of how we live our lives and we do it perhaps too often, but you then move to the other decision, where you think, you reflect, you count twice and then you decide at the ballot box. That is the moment when it really matters. It is not the duty of this House to tell people how to do it, but it is our duty to tell them that we will help them to think seriously about it. It is a serious decision that we want them to take and we will then respect it. I beg to move.
European Union Referendum (Date of Referendum etc.) Regulations 2016
Lord Boswell of Aynho Excerpts(8 years, 8 months ago)
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Lord Boswell of Aynho (Non-Afl)
My Lords, the debate so far has been characterised by both eloquence and passion and, if I may say, with a powerful maiden speech that exemplified both. I intervene briefly and primarily to clarify the position of your Lordships’ European Union Select Committee, which I have the honour to chair.
While no doubt many, if not all, our members hold strong personal views on this vital matter—some of them will be participating in this debate—as a committee whose remit is scrutiny and forensic inquiry we shall refrain from publishing any recommendation on which way to vote, and I, too, will respect this in relation to my personal position. In our view, our main job, both in service of your Lordships’ House and on behalf of the wider electorate, is to ensure that the recent deal is properly scrutinised. We will continue that work unabated until and indeed, if necessary, after the referendum is held, because there will be ongoing legal consequences of some of those decisions.
We are in the process of preparing a report to this House on the Government’s and others’ visions of European Union reform, which we will publish shortly. We are also looking at some of the specific legal implications of a vote to leave. I close my brief contribution by emphasising that, more widely, this work is intended to contribute to the national debate. I urge the Government to meet in full their undertakings and obligations to spell out clearly and intelligibly to the public the nature of the solemn choice they are to make.
Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
Lord Boswell of Aynho Excerpts(10 years ago)
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Lord Boswell of Aynho
At end to insert “, but that this House, having regard to earlier undertakings by Ministers, regrets the inappropriate manner in which the Government have sought parliamentary approval for their application.”
Lord Boswell of Aynho (Non-Afl)
My Lords, my amendment to the Motion expresses regret at the inappropriate manner in which the Government have sought parliamentary approval for their application to rejoin the 35 justice and home affairs measures.
Nevertheless, in moving this critical amendment I thank the Minister for his efforts in his introduction to this debate. This is an important issue which deserves calm and considered debate. I trust that the wording of the Motion before us, which the Government amended late last Tuesday—just before we went for a short break—so as to include explicit reference to the 35 measures, along with the Minister’s thoughtful opening, mean that we will not see any repeat of the chaotic and acrimonious scenes that were played out in the House of Commons this time last week.
The amendment, which I have tabled with the support of the European Union Committee, which I chair, refers to undertakings by Ministers. I should begin by putting those before the House. They could hardly have been clearer. On 15 October 2012, the Home Secretary said to the House of Commons:
“I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place, but the importance that we will accord to Parliament in the process leading up to that vote”.—[Official Report, Commons, 15/10/12; col. 35.]
That was more than two years ago. As recently as 8 May of this year, the noble Lord, Lord Faulks, who is of course in his place, repeated the Home Secretary’s undertaking on the Floor of this House, saying:
“The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today”.—[Official Report, 8/5/14; col. 1587.]
It is thus crystal clear that the Government explicitly promised both Houses a vote on the “final list of measures” that the United Kingdom would be rejoining. This is not a recent matter; it has been understood on all sides for more than two years.
I emphasise the words “final list”, not because of pedantry but because the list has changed substantially over time. It is all very well for the Minister to say that we had a debate in July, but at the time of that debate the Government’s list and the Commission’s list were different. Even on 5 August, when the Home Office and the Ministry of Justice wrote to the Committee, they were unable to confirm that their list was final, although they did not at that time “anticipate” any further changes. It was not until 30 October—less than three weeks ago—that Ministers finally wrote to confirm that negotiations with the Commission had finished and that there would be no further changes to the list.
I will make one further observation on the Government’s account of our debate in July, which was given in a letter I received from the Leader of the House earlier today. The Government claim that the debate on the package of measures, which took place in this House on 17 July, was on—and I quote from the Leader’s letter—an “amendable and divisible motion”. I remind Members of the House of the wording of that Motion. It was:
“That this House has considered the United Kingdom’s Justice and Home Affairs Opt-Outs”.
Are the Government really saying that the House, if it wanted to vote, should have voted on the question of whether or not it had considered the opt-out—on an entirely neutral statement of fact debated as last business on a Thursday? Frankly, the Government should really stop digging on this.
Lord Faulks
Clearly, I do not have time to go through the reasons why we have not opted into all the measures that we have not opted into. The presumption is that we opt in to matters that we consider are in our national interest, and we have given reasons for doing that.
Time is running against me. I entirely accept that matters might have been more expeditiously dealt with, but a number of factors caused delays. The Government have been kept very much up to the mark by your Lordships’ House. I hope that with the explanation that I have been able to give and the letter which has so recently been written, the noble Lord, Lord Boswell, will feel inclined to withdraw his amendment to the Motion.
Lord Boswell of Aynho
My Lords, at this late hour, perhaps I may briefly distil the debate into three considerations. The first is the remarkable complexity of the issues involved. I noticed that the noble Baroness, Lady Ludford, asked about the 11 into 10 problem with the regulations, which was not answered in detail, although the noble Lord, Lord Sharkey, referred to it. I answer, in no sense criticising anyone nor intending to wind up on all the points that have been made, that that was the framework directive on freezing orders, and the United Kingdom had already opted in to the post-Lisbon amending legislation, so Protocol 36 no longer applied to the framework. Although the Explanatory Note was slightly—I am sure, unintentionally—misleading on the point, it was true that this had to be transposed into national law but, contrary to the Explanatory Note, it was not among the 35 measures under consideration. I mention that because it is a good example of the complexity of all this.
At the same time, alongside all that complexity, there are some simple practical issues. Are we happy for terrorists to cross the Irish land frontier and not have any recourse to extract them? Are we happy for people to commit crimes across Europe of a very unpleasant nature, often co-ordinated as part of a criminal gang, and for us to have no recourse? Are we happy for the judicial systems to work alongside each other? There is complexity and simplicity.
The Minister has acknowledged that there is considerable concern about the handling failure, which was, frankly, the substance of my amendment. He has been both generous in his comments about the scrutiny that we have carried out and modestly contrite about the failures that may have occurred. This is now the moment to move on, particularly in view of the fact that there is strong but not universal support for the substance of the 35 measures.
In concluding, I should like to say how grateful I am for the support and thoughtfulness that have been expressed in the debate. Collectively, we have made our point and, on that basis, I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Boswell of Aynho Excerpts(12 years, 8 months ago)
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Lord Avebury
My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.
Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.
Lord Boswell of Aynho
My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.
I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.
These are complex cases. My difficulty in saying that we need to keep them within scope is—thinking aloud—in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the amendment moved by the noble Lord, Lord Bach, as indicated by many contributors to this debate, would bring legal aid within scope for all immigration cases. I readily understand why noble Lords have put forward the amendment and I am sure the noble Lord will accept, as I think he indicated in his remarks, that just because we seek to take many immigration cases out of scope does not mean that we do not value the contributions that immigrants have made. I think the noble Lord, Lord Bach, acknowledges that we certainly do.
To make a change to the Bill in a way proposed by this amendment causes us to look at the rationale and the basic structure of what underlines this legislation at a time of limited resources. As my noble friend Lord Boswell has just said, this is a time when difficult decisions have had to be taken and when there has been a need to focus legal aid on those who need it most in the most serious cases. My noble friend said that he hoped we would consider it. It can be taken as read that, in an area as sensitive as this, for the reasons that have been advanced by many of your Lordships in contributions to this debate, this is obviously a matter which has been given serious consideration. I am confident that all who took part in the debate will appreciate that this is not a blanket exclusion of immigration cases. We have made it clear in the immigration sphere that we are retaining legal aid for asylum cases, which we believe is absolutely essential because the issues at stake can, at times, be as serious as life or death. It is important, too, to recognise that we will protect legal aid for immigration detention and where there is domestic violence. We are also keeping legal aid for most immigration judicial review cases, which are very often the most complex cases.
This approach means that under our reforms we will continue to spend £70 million of the current £90 million budget in relation to immigration cases. My noble friend Lord Newton talked about a disproportionate share. I think that our reform, with an expectation that some £70 million out of the current £90 million budget will continue to be spent, is an indication that this has been examined in some detail.
However, the corollary of protecting legal aid, particularly in the key areas to which I have just referred, is that it is necessary to be more far reaching in others. At a time when our fiscal difficulties have been acknowledged by a number of contributors, I do not see how it is always possible to justify the extended use of limited resources; for example, for foreign students who may wish to study here but who do not have a connection with the United Kingdom. When difficult choices have to be made sometimes it is very easy to accept the principle that those choices are necessary but it is more difficult when you try to translate them into specific areas.
I shall pick up specific points made by a number of contributors, not least by the noble and learned Baroness, Lady Butler-Sloss, who acknowledged the accession to the convention that was recently confirmed. The noble and learned Baroness knows, because we debated it in Committee, that the Government provide £2 million per annum for support to trafficked victims to help to rebuild their lives and that can include information about legal rights. I think it is known by your Lordships that that £2 million is distributed by the Salvation Army. The convention requires legal counselling, including information about people’s rights. There are no immigration applications as such that trafficking victims need to make. They are automatically granted 40 days' leave; then they may be granted 12 months’ leave if they are assisting the police, or up to three years’ leave if there are compelling circumstances to do so. That is decided on the known facts of the case and they do not need to apply for it.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Boswell of Aynho Excerpts(12 years, 9 months ago)
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Lord Boswell of Aynho
My Lords, I rise in support of my noble friend Lord Thomas of Gresford’s amendment with considerable diffidence, as a layman tiptoeing for the first time into consideration of this legislation. As the noble Lord, Lord Davies of Stamford, has already reminded the Committee, the context is the further constriction of legal aid. I think the concern of all lay people, as well as practitioners, must be that this will in some way inhibit people’s access to justice unless they fall within narrow categories.
I do not wish to detain the Committee at length on personal cases, but I first had experience of this—as typically happens, by chance—in relation to a personal injury claim involving a member of my family, which took place in the 1970s. As it happened to take place on a British-registered ship, which was at that time within United States territorial waters, it gave rise to a certain interest in the forum. At that time there were no contingency fee arrangements at all within the United Kingdom. However, as it was possible to bring litigation within the United States, I was able to avail myself of such an arrangement. I will say no more about it other than that it did provide an opportunity that would otherwise not have been available to me.
Nobody wishes to make it impossible for individuals to pursue their personal injury claims or indeed for small and medium-sized enterprises to have redress for their commercial disputes with large multinational or well-funded companies or bodies. However, it has become clear recently that third-party litigation funding was growing in potential and was a growing practice—and, potentially, a growing problem across virtually all developed countries, broadly simultaneously. I have sought to inquire further into this by means of Parliamentary Question. I go along with my noble friend who moved this amendment very much in the spirit of inquiry to try to focus on the issue and see that it is properly handled. However, I am a little less optimistic than the noble Lord, Lord Davies of Stamford, as to whether arrangements that are based on transparency and the market solution will in fact work to the wishes of the public at large.
It seems that we need a fairly robust code. My noble friend has sketched such a code to manage this, with further details to be supplied in due course by the Lord Chancellor. Those who are practitioners in the field will accept that there has to be some boundary to it. My concerns are threefold. First—and my noble friend has already referred to this—the potential for conflicts of interest can be pretty explicit in the arrangements, where it may be in the interests of the funder to stop the case but not in the interests of the litigant. Secondly, there is the question of transparency. I do not spend my life reading court reports, but they have the names of counsel, the instructing solicitor and, obviously, the parties, so you do broadly know what is going on. However, in cases where people are operating behind that, with arrangements that are being concluded privately, it becomes less clear what is happening.
Thirdly—and I confess considerable distaste for the potential here—one can imagine a situation where it is not merely a matter of somebody taking on a particular venture but where these claims are warehoused, securitised or packaged in a bundle and sold on to third parties who have no interest in the interests of the litigant and probably no knowledge of who they are. It might simply become a kind of impersonal transaction. I feel myself very uncomfortable with that. If I go no further than members of my family who, unlike myself, happen to be lawyers, there is a certain resonance—even if they are not specialists in this area—in the concepts of maintenance and champerty. Those are enshrined in our traditions for a very good reason. We do not want to have a purely commercial interface in these matters. On the other hand, we do not want to stop access to justice or stop perfectly reasonable and above-board arrangements by responsible people operating within a framework.
I feel a welling-up of some disquiet in this area. I have a feeling that we need to set boundaries on it and a fear that there might be potential for some hard case or scandal that would excite public interest—and the public would then ask how we had slept on this. I look forward to the Minister’s reassurance that the Government are on the case and that it will be sensibly—not restrictively but properly—regulated and observed.
Lord Mackay of Clashfern
My Lords, the introduction of conditional fees into our system was an innovation in the rules against maintenance and champerty. Therefore, this is an area with which, at least some time ago, I had a certain degree of familiarity. It carries with it the risks recognised in these prohibitions that went back to the very beginnings of the system of common law.
When I sought to introduce the conditional fee, I tried to do it with a good deal of care as to the areas in which it would operate, as my noble friend Lord Thomas of Gresford reminded us. I was certainly of the view that it would be developed according to our experience of how it worked. On the whole it has worked in the sense in which I thought that it was likely to work when I proposed it. It was to deal with the area that the noble Lord mentioned of those who did not qualify for legal aid but were not sufficiently well resourced to undertake litigation on their own. It met quite a considerable degree of need in that area, and it has been allowed to develop.
Of course, changes were made. When I introduced the conditional fee, I did so on the principle that the defendant had no real responsibility for the relationship between the claimant and his lawyer and therefore that the arrangement by means of a conditional fee should not affect the liability of the defendant. Those of your Lordships who are old enough to remember the presence of Lord Simon of Glaisdale in this House will remember that very often, when anything about legal aid came up, he dealt with the development under which, if a party had legal aid, the defendant would not be allowed to recover costs without leave of the court. The contribution of the claimant with legal aid to the defendant’s costs was limited—often to zero. Lord Simon of Glaisdale thought that was completely unjust, and your Lordships may remember that it was not once that he said that. Ultimately, I began to understand the force of his argument. However, that remained the law on legal aid, and I suppose that it is still the law on legal aid.
When I was introducing the conditional fee I did not feel that it was the same thing as a statutory provision for the claimant which was provided by legal aid. It was a private arrangement between the solicitor or the lawyers involved and the claimant, so I did not have any such effect. In due course, my successor introduced effects on the defendant of that particular relationship and the result was, as we know, a considerable escalation in the cost of litigation, which Lord Justice Jackson analysed in a report that cannot be criticised for its brevity. The consideration was very detailed indeed, but I think that in the end he came to the conclusion that the system as it originally operated was more just than the new system. I, of course, therefore support Lord Justice Jackson's conclusion in that regard.
The noble Lord, Lord Bach, points out to me from time to time, when we have a chance to discuss this, that we are not just going back to my situation because legal aid was even more liberal in my time than it seems to be now. If this Bill is passed without any effect on the legal aid proposals, then it will continue to be so, but if the legal aid proposals are effected, there will probably be rather less legal aid than at the moment—certainly a good deal less than when I was dealing with these matters. To that extent it is a different situation, but from the point of view of the litigant in connection with conditional fees, what Lord Justice Jackson recommended was to go back to my system.
That was, as I said, an innovation on the rules against maintenance and champerty because the lawyer was given an interest in the outcome of the litigation, which on a strict view of these rules might not have been allowed. However, statute was able to allow it and there was no further question about that. Third-party funding is a further development, which goes into the area where these dangers had been seen for many years. I therefore respectfully suggest to your Lordships that that is an area in which a good deal of caution is required before we allow it. For example, in relation to the conditional fee we allowed it in certain areas but not in others. In particular, as my noble friend Lord Thomas reminded us, it was not allowed in the criminal area or in family law. If third-party funding is to become at all common in our courts, it needs to be subject to fairly careful control. Otherwise the dangers foreseen in the old law will occur.
I cannot think of a better way of doing that than by giving the Lord Chancellor power to regulate the situation. He can, of course, from time to time, alter these regulations as he sees the practice developing. For example, if some unforeseen difficulty arises he could restrict further. If on the other hand it seems to be successful, he could open the scope further. I strongly support the principle of the amendment moved by my noble friend Lord Thomas of Gresford. The detail of it will require to be worked out—primarily by regulation, I should have thought—and the question is whether the scope of this amendment is adequate to give sufficient power to the Lord Chancellor to control all aspects of the matter.
This seems to be a pretty thorough kind of amendment, but obviously I await the Minister’s comments on the matter. That regulation is required seems absolutely clear. A voluntary code, particularly one that falls short of Lord Justice Jackson’s recommendations on the matter, is not at all sufficient. This needs statutory control under regulation, particularly in relation to the costs that the third party will have to bear if the litigation is unsuccessful. For example, if the third party can get out of the contract before the case goes to full proof, is he thereby going to escape the costs of the litigation that he has taken responsibility for helping to start?
There are difficult issues connected to this that are dangerous to the justice of the system that we all prize. It therefore seems very wise that the matter should be the subject of statutory control by regulation in the hands of the Lord Chancellor.
Prisons: HM Young Offender Institution Feltham
Lord Boswell of Aynho Excerpts(12 years, 11 months ago)
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Lord McNally
My Lords, we have to accept the certain realism that occasionally there will be dual use of vehicles. However, that is not something that we want and, indeed, as part of the new contract the contractors are bringing in specially designed hybrid vehicles with sliding partitions to separate prisoners of different age groups and different sexes. This will, we hope, allow the contractors to maximise the use of the vehicle fleet and to reduce costs.
Lord Boswell of Aynho
Given my own experience as a constituency MP for a different young offenders institution, will the noble Lord accept that this is by no means a local problem? It seems to have been going on for a very long time. Will he look in particular at the human side of this, because often these are young people, many of whom have just been sentenced for the first time? Will he recognise that if they arrive late, the hour is bound to be late; they are probably extremely tired; they might not have been fed and they might even be frightened? Is it not important that we address this?
Lord McNally
Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.