Courts: Resourcing and Staffing
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, it is a considerable privilege and delight to be allowed to follow my noble and learned friend Lord Saville of Newdigate, and therefore be the first to congratulate him warmly on his most witty and distinguished maiden speech, although, of course, my noble and learned friend Lord Woolf has already pre-empted me and shot some of my foxes.
As all the lawyers present will know, my noble and learned friend Lord Saville was a wholly outstanding commercial practitioner and judge, and then, as all the world knows, he was plucked from the Appellate Committee of this House and dispatched to Northern Ireland to conduct the Bloody Sunday inquiry, which effectively occupied him for the next 12 years. I confess that when I read in the Times last week that my noble and learned friend had criticised Sir John Chilcot for excessive tardiness in taking seven years to produce the Chilcot report, I checked the date to ensure that it was not 1 April. However, that is a frivolous aside. As my noble and learned friend Lord Woolf has already said, the plain fact is that, prolonged and expensive though it was in the making, the Bloody Sunday report of my noble and learned friend Lord Saville was universally hailed as a masterpiece and received with acclaim. No doubt we lost a whole series of illuminating judgments on final appeals which he would otherwise have given here and in the Supreme Court. However, let us now hope that, following today’s maiden speech, he will give us the benefit of many more valuable contributions to the business of this House.
I, too, pay tribute to the Minister, whom I am sure we all fervently hope will remain in his place. Alas, a shake of the head indicates that we are to bid him farewell. I do so with great personal regret and can only hope that his successor begins to measure up to the achievements that he has recorded in his time in this House.
I pay tribute, too, to my noble and learned friend Lord Woolf for securing this debate and introducing it compellingly, as always he does—dare I suggest that he is in serious danger of becoming a national treasure? As so often in past years, in following him in giving judgment, essentially I am concerned with echoing what he said without adding any particularly dazzling insights of my own. Today I echo most particularly his emphasis on the crucial importance of a High Court Bench with the integrity and efficiency of the whole justice system—appoint the right people to the High Court Bench and the tone is set for a fundamentally sound system. How serendipitous it is, therefore, that this debate takes place in the very week that my noble friend Lord Kakkar has been appointed as the new chairman of the Judicial Appointments Commission—how glad and grateful we are that he is undertaking this hugely important role; he happily has a really excellent judicial vice-chairman in the person of Lord Justice Ian Burnett.
When I was appointed to the High Court Bench, now more than 30 years ago, I recall Louis Blom-Cooper, an old friend and adversary, congratulating me and then adding, “Remember that the office you hold is of the very first importance, but remember too that you yourself are of none”. It was no doubt a salutary caution against “judgitis”, a condition that he perhaps suspected I should be affected by. Sounder advice, perhaps, than to be told that a High Court judge’s task is to be quick, courteous and wrong, which is not to say that the Court of Appeal’s role is to be slow, rude and right, for that would be to usurp the function of the House of Lords—now of course the Supreme Court.
Frivolities aside, as my noble and learned friend Lord Woolf has made clear—and it is I think the experience of many of us—it is becoming ever more difficult to ensure that the right people are applying to the High Court Bench, the truly outstanding candidates whose great success as practitioners ensures that they enjoy the confidence and esteem of the Bar who will be appearing before them. The charge is ever more demanding; the administrative burdens placed on judges ever heavier; the likelihood of having to deal with all the problems of litigants acting in person for want of legal aid ever greater; the pension entitlement ever reduced—indeed in some cases, non-existent, because a judge who already has his pension pot cannot afford to take a pension later because he has to pay an initial large capital sum up front. How best to combat all this?
First, as my noble friend made plain, we need to do all we can to make the judges’ professional lives as satisfying and trouble-free as possible, in the way of IT, secretarial clerking assistance and indeed such comforts as still remain out on circuit in judges’ lodgings. I recognise that the limousines, the outriders, and the trumpeters of yesteryear are indeed a thing of the past, but for heaven’s sake let us at least continue to allow judges the peace and security that they need away from home and family as they try murders and other very serious cases around the country. It is imperative that they continue to go on circuit; there is no better way of maintaining professional standards, not least advocacy standards, in the provinces and disturbing the tendency that otherwise develops of a too-cosy relationship between the local Bar and local judges.
Secondly, I would urge consideration of a return to the higher retirement age that used to apply to the judiciary. My generation were allowed to sit until we were 75; some 20 years ago this was reduced to 70. To be able to continue sitting until 75 would go some way to compensating for the loss of pension rights and without disadvantage of any kind. It may be that, 20 years ago, older judges—myself not least—would have been found wanting in relevant, technical skills but this generation has no such problems. There is real value in lengthening the span of judicial careers.
Because for some years past, Lord Chancellors have no longer been able to tap a young successful Silk on the shoulder and persuade him, at whatever great personal financial sacrifice, to accept the Bench, those nowadays applying and being appointed to the High Court Bench have been older than in past times, even though now they have to do 20 years’ service to earn a full pension. It was 15 years when I was appointed, although in fact I served for 28. The Bench, including the higher appellate court, would undoubtedly benefit from somebody staying longer in post, retaining their expertise and experience and reducing the temptation which, regrettably, now exists of retiring earlier even than 70 to establish a practice and earn a fortune as an arbitrator.
In that connection, I would add this: able and successful practitioners at the Bar should be encouraged by judges, fellow Benchers and whoever has the reputation of the justice system at heart to apply to the Bench. They should, if necessary, be gently reminded of their public duty—they have done well out of the practice of the law; surely it is time to put something back into it. Demanding and financially unenticing though a judge’s life may be, I believe it to be deeply rewarding from other standpoints. One is no longer accepting a brief and arguing a case in which one may have scant faith; one is actually advancing the cause of justice and has the satisfaction of an important job well done and still, I believe, the prestige that goes with it.
In short, judges make a huge contribution to the public weal. No effort, and very little expense, should be spared in their recruitment.
Prisoners: Foreign Nationals
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 8 months ago)
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Lord Brown of Eaton-under-Heywood
To ask Her Majesty’s Government how many prisoners serving indeterminate sentences for the protection of the public over the last three years have been foreign national prisoners eligible, pursuant to Section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for removal from the United Kingdom at the end of their tariff terms without a direction from the Parole Board for their release, and what proportion of such prisoners have in the fact been removed without such a direction.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, from May 2012, when the tariff- expired removal scheme was commenced, up to 31 March of this year, 261 prisoners serving a sentence of imprisonment for public protection have been removed under that scheme—that is, without a direction from the Parole Board. A further five such prisoners have been eligible for removal but officials decided that they did not meet the criteria, while 16 have been approved for removal but are awaiting the settling of their removal directions.
Lord Brown of Eaton-under-Heywood (CB)
I am grateful to the Minister for those figures but I am sure that he will readily understand the sense of injustice and frustration, not to say anger, felt by UK domestic IPP prisoners at this preferential treatment which is accorded to foreign national prisoners. It is preferential because, of course, the foreign national prisoners do not have to satisfy the Parole Board that they can safely be released. Would the Minister agree to see the Lord Chancellor and try to persuade him that this is yet another reason for the Lord Chancellor to exercise his powers, also given under Section 128 of LASPO, to modify the test which the Parole Board applies in the case of the domestic IPP prisoners so that, hopefully, some of them, too, may gain the earlier release that at the moment is given only to these foreign prisoners?
Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 9 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, this is the second time that the Lord Chancellor has exercised his power under Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 to prescribe enhanced fees—court fees, that is, that exceed the cost to the Courts and Tribunals Service of doing that for which the fee is charged. This power was first used last year in relation to the fees for bringing court proceedings to recover sums of money. On 4 March last year—a year ago—the noble Lord, Lord Pannick, moved a regret Motion, on which I spoke. Frankly, much of what I said then applies with equal—indeed, even greater—force today. I pointed out that there has long been objection even to the basic principle of full cost recovery. The justice system exists for the benefit of society as a whole and really courts should no more be required to be self-financing than, say, the police service.
Of course, orders for enhanced fees go altogether further than mere cost recovery. In a real sense, as the noble Lord, Lord Beecham, explained, they amount to selling justice—on the face of it contrary to Magna Carta, although now of course regrettably sanctioned by Section 180 of that Christmas tree of an Act we passed two years ago, the Anti-social Behaviour, Crime and Policing Act. As I pointed out in last year’s debate, that Act stretches to 186 clauses and 11 schedules, occupying 232 pages of the Queen’s Printer’s copy. Small wonder that by Clause 180 we had grown a little lax or careless in our scrutiny of that Bill.
Today I want to focus briefly on the increased fees now to be exacted for a decree of divorce or nullity, an increase of about a third from £410 to £550. In the Government’s January 2015 response to part 2 of the consultation on the so-called reform of court fees, it was recorded at page 40 that the senior judiciary, who were, naturally enough, a statutory consultee in the process,
“noted that the current divorce fee was above cost”.
The recent 20th report of the Secondary Legislation Scrutiny Committee confirmed this, noting at page 4 that the Ministry of Justice’s own estimate of the average cost of dealing with an uncontested divorce application is only £270—this new enhanced fee being therefore just over double that.
Of course, that earlier consultation related specifically to the then-proposed increase of the fee to £750—a proposal later abandoned. However, the objection remains essentially as to the original proposal, summarised in the case of the higher judiciary at paragraph 8.5 of the Explanatory Memorandum to this order. The objection was that,
“it will be a disincentive for divorce and in particular, women that are victims of domestic violence”.
Essentially, that echoed earlier objections that an increased divorce fee,
“could lead to parties being trapped in unhappy or violent marriages”,
and could prevent people from marrying or remarrying and being therefore,
“without the protection the law affords to married couples”.
At the conclusion of last year’s debate, noting that the Motion was one of only regret and not a fatal Motion, I expressed the hope that at least it would persuade the Government that enough is enough and really there must be no more use of this enhanced fee power. Alas, the Government have now chosen to go still further down this sorry road. This order is to be not merely regretted; it is to be deplored.
Lord Faulks
My Lords, this debate has been short but not lacking in power nor indeed in criticism of the Government. It feels almost nostalgic to hear in this Session of Parliament criticisms of the Government generally in their handling of the economy and of the Ministry of Justice and the Secretary of State. We are on familiar ground. It even included, from the noble Lord, Lord Beecham, the customary disavowal of anything being wrong with the economy at the time of the election in 2010.
Age of Criminal Responsibility Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 10 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Dholakia, on his persistence in advancing this worthy cause, to which I add my support.
First, I shall give a very brisk canter through the history of this question. Before 1933, the age of criminal responsibility was in fact seven. You were deemed to be what was called doli incapax—incapable of evil—until the age of seven; for the next seven years of your life— seven to 14—you were presumed to be doli incapax. The Children and Young Persons Act 1933 increased the age from seven to eight, therefore leaving a presumption from eight to 14. Thirty years then passed until 1963 when eight was increased to 10 and 10 to 14 became the age of presumed doli incapax. Thirty-five years then passed until the Crime and Disorder Act 1998 which abolished the presumption of not being criminally responsible and left it to the prosecution to prove criminal responsibility for that 10 to 14 group. The prosecution would seek to prove it by showing that the defendant knew his conduct was seriously wrong and therefore criminal as opposed to merely naughty.
That position, however, remained unclear for about a decade from the 1998 Act because it was thought by some that instead of the presumption having been abolished in respect of the 10 to 14 year-olds, it had merely been reversed. In this Chamber in 2009, in a case to which I was party, R v JTB—we sat in the February recess in 2009 at this end of the Chamber, at the Bar of the House—we decided, not as a matter of policy but as a matter of statutory construction of the 1998 Act, that indeed it had been abolished. Therefore, as we all now know, today if you are under 10 you cannot be convicted of a crime, but once you have reached the age of 10 then your particular age, whether you are 10, 11, 12, 13 or whatever, as a matter of strict law becomes entirely irrelevant except in so far as it would bear on the court’s assessment of how reasonably you had behaved if, for example, you were running a defence of self-defence, or if some question of subjective recklessness, foresight or intention—something of that sort—were involved. But the earlier all-important question between the ages of 10 and 14 of whether you knew what you were doing was seriously wrong was no longer being asked.
Enough of the history. As the noble Lord, Lord Dholakia, has explained, internationally, even indeed within the UK, 10 is among the very youngest ages of criminal responsibility. Surely the critical question must be how as a society we deal with these youngsters to address their misconduct and wrongdoing. The word “criminality” would of course beg the very question. As I understand the position, the substantive disposal of these cases of wrongdoing—of a child in, say, the age group 10 to 12, which is that which we are focusing on today—really is substantially the same whether they are above or below the age of criminal responsibility. I repeat “the substantive disposal” because that is of course a very different question from whether one reaches that by way of the criminal justice system and through the criminal courts or by what is essentially a corrective welfare process. Obviously, whichever side of the line they are, these children will if strictly necessary be detained securely, but generally of course they will be subject to the sorts of welfare programmes that have been outlined by others today.
I shall make a very brief digression in parenthesis if I may. The GOV.UK website states that children under 10 who break the law but of course cannot be charged with a criminal offence can be given either a local child curfew or a child safety order. Actually, as the Library helpfully pointed out to me yesterday, having done a little research on it, local child curfews, introduced in 1998, were in fact repealed by the Policing and Crime Act 2009. One notes that the website perhaps needs correction.
Today, though, that is essentially by the way. Altogether more important are child safety orders and, if necessary, care proceedings and orders under the Children Act. Surely our central focus should therefore be on refining and extending the presently available welfare programmes and corrective steps, rather than on criminalising youngsters. The real and compelling reason to raise the age of criminal responsibility, as so many others have tellingly observed today, is to delay for that much longer actually criminalising these very young people. They are still developing as individuals, developing their identities and self-esteem, and if society—represented here, of course, by the criminal justice system it operates—characterises and brands them as criminals, unfortunately, that is how they will come to identify themselves. Alas, that makes it all the more likely—statistics bear this out—that they will thereafter indeed develop into criminals, perhaps career criminals. Surely we must strive to avoid that, above all. In short, we should keep these youngsters out of the criminal courts, protecting against the early acquisition of a criminal record which then will remain with them for ever.
Is the future of this issue to be regarded as settled for all time by that tragic, ghastly and appalling case of Jamie Bulger, which of course we all still remember so vividly? For my part, I fervently hope not and I wish the Bill well.
Prison Reform
Lord Brown of Eaton-under-Heywood Excerpts(8 years, 11 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, as Jane Austen once so nearly said, it is a truth universally acknowledged that a new Lord Chancellor in possession of a marked inclination towards prison reform must be in want of a curable injustice. One such plain injustice, together with the means to cure it, lies immediately to hand: the ever-increasing plight of those still incarcerated under the IPP regime, the scheme for the indefinite detention of certain prisoners for the protection of the public, who are often comparatively minor offenders. It is a wholly discredited system which was finally abolished in 2012 through LASPO, but there still remain some 4,500 such prisoners, of whom around 3,500 have served longer than their tariff terms; that is, longer than the terms judged appropriate as punishment for their wrongdoing. Indeed, 392 prisoners have served more than five times their tariff terms, as this House was told in answer to an Oral Question of mine last November.
It is not every day of the week that one is able, as I was last week, to plead personally to a Justice Minister the existence of a deep and systemic injustice in the criminal justice system flanked, as I was, by two former Lord Chief Justices, the noble and learned Lords, Lord Phillips of Worth Matravers and Lord Judge, and for good measure by the noble Lord, Lord Cormack. None of them is an enthusiast for putting the public needlessly at risk but all, thankfully, are champions of justice and for change. I am hugely indebted to the noble Lord, Lord Faulks, and, indeed, to the noble Baroness, Lady Evans, for having held a meeting and for the characteristically thoughtful and sympathetic hearing we were given.
There is no time today to outline even the rudiments of the case for the release of these post-tariff prisoners, but I will take the opportunity to put before the House some of the facts as set out in an article in the Times—again that newspaper—of December last. The article was written by three of the Lord Chancellor’s highly respected erstwhile leader-writing colleagues, Rachel Sylvester, Alice Thomson and Richard Ford. They record that 740 IPP prisoners have served between two and four years beyond the tariff; a further 587 between four and six years post-tariff; 136 between six and eight years longer; and three are still in jail more than eight years longer than the tariff.
What is the solution? Surely it must be to make use of Section 128 of LASPO, the Act that abolished this regime, custom-built as that provision was, specifically to cater to the needs of the backlog of these prisoners still in jail—namely, by changing the test whereby they can finally regain their liberty. At the moment, they have to satisfy the Parole Board that they can safely be released; the Parole Board, perhaps unsurprisingly, has a defensive and risk-averse mindset, conscious that it might be blamed if people then reoffend. But the plight of these IPP prisoners, particularly those who have long since served terms for their punishment—in the early years of the scheme, these were often terms of only a few months—who are now being detained purely preventively, surely calls for a very different approach. If their continued internment is to be justified, it should now be for the authorities to establish a positive likelihood that, if released, they would pose a real, immediate and serious threat to life or limb.
Of course, some of those released would reoffend, but that is the price that we must pay to end this ever-growing stain on our justice system. We must consider the prizes to be won. Besides ending the basic injustice of internment, we would end the nightmare of uncertainty and hopelessness suffered not just by these prisoners—many of whom over the years, alas, have committed suicide—but their families, too. We would free up places in our already grossly overcrowded prisons and save countless millions of pounds which could then be devoted instead to some of the many other calls for prison reform which have been canvassed in today’s debate.
Legal Aid
Lord Brown of Eaton-under-Heywood Excerpts(9 years ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, like many other noble Lords here today, over the past three years since LASPO I have taken part in a number of debates about legal aid cuts, several regret Motions and, in January this year, the debate obtained by the noble and learned Lord, Lord Morris of Aberavon, on Her Majesty’s Government’s assessment of the long-term impact of current levels of funding of the criminal Bar. Those debates were inevitably too late to prevent the succession of cuts that were being made in the availability of legal aid or in the fees being paid to lawyers, but we—certainly I—took part in them in the hope that, if we protested forcefully enough and presented a sufficiently convincing case against them, we might just discourage the department and the Lord Chancellor from yet further savaging the legal aid scheme, stem the tide of cuts, and perhaps even persuade the Lord Chancellor to turn the tide.
I have read in draft the evidence given eight days ago to the Constitution Committee by the Lord Chancellor and I note with some relief his statement that the amount available for legal aid has remained broadly untouched in the recent spending review. Could it be that our past protestations and arguments have persuaded the Lord Chancellor to desist from further depredations, or is it perhaps that we now, at last, have a Lord Chancellor who recognises the needs and strengths of our legal system and the imperative that we do not further put them at risk but, ideally, restore the system to health? To refer again to the recent evidence given by the Lord Chancellor, one notices his concern to,
“improve the quality of advocacy in our courts, safeguard the future of the criminal Bar and make sure that people whose life and liberty is at stake get the best possible representation”.
One could at this stage feed in paragraph 9.12 from Sir Bill Jeffrey’s review, Independent Criminal Advocacy in England and Wales:
“The particular strengths of the English and Welsh criminal Bar—intellect, expertise, independence, ability to represent both prosecution and defence—may not be unique; but they are a substantial national asset which could not easily (or perhaps at all) be replicated, and they contribute significantly to the high international reputation of our legal system”.
He goes on to worry about the ability under the present system to continue to replenish all that necessary expertise. The criminal Bar is, at the same time, both the most important of all the various specialist Bars and yet sadly the poor relation to all these Bars. It is the most important because, as the Lord Chancellor’s recent evidence suggests he recognises, it operates in the area where people’s lives and liberty are at stake. Of course there are vast fortunes made at the commercial Bar, the patent Bar, the revenue Bar, the Chancery Bar—all these other specialist Bars—but the outcome of all those disputes is really just a matter of book entries and adjusted balance sheets; seldom are people’s day-to-day lives affected, as of course they are profoundly by the outcome of most criminal cases.
Make no mistake about it: the accumulated series of cuts over recent years has had a devastating effect on the criminal Bar. This has been described by the noble and learned Lords, Lord Judge and Lord Woolf, both Lord Chief Justices in their time. I need not rehearse all that again. It is a question of recruitment, of the seed corn for the next generation of criminal specialists—silks, judges, and so forth. Of course, it is not just defendants in need of skilled representation who will suffer from a weak criminal Bar. The efficient conduct of cases in the courts is the linchpin of the administration of justice. Incompetence in the representation of either prosecution or defence inevitably leads to the failure of justice: prolonged delays, wrong verdicts, aborted trials and more appeals—all hugely costly both socially and financially.
Civil justice, too, is much in peril. As the noble Lord, Lord Lester, mentioned, today’s column by the noble Lord, Lord Pannick, in the Times sets much of that out. Sometimes I wonder whether, if perhaps he wrote weekly rather than fortnightly columns, we could not cancel some of our Thursday debates on the future of the legal aid system. Be that as it may, we must continue to hold the Lord Chancellor as best we may to his stated commitment to access to justice and the rule of law.
Ministerial Code
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 1 month ago)
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Lord Faulks
The Ministerial Code sets out clearly what the Prime Minister expects of his Ministers. If they depart from that code, it is evident that they have departed from it and there are modes of dealing with that. I take the noble Lord’s suggestion, but at the moment the situation seems to be satisfactorily dealt with.
Lord Brown of Eaton-under-Heywood (CB)
Am I right in supposing that this amendment is really a prelude to the introduction of a British Bill of Rights in place of the existing Human Rights Act, and is intended principally to clarify the fact that our own domestic primary legislation trumps unincorporated treaty law?
Lord Faulks
The noble and learned Lord is quite right. He points to the difference between the dualist system, which we have, and the monist system whereby unless law is incorporated in an Act of Parliament, it does not become automatically a part of the law. The question of the amendments to the Bill of Rights, when or if it comes before Parliament, is somewhat separate but he accurately states the necessary constitutional principles.
Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 2 months ago)
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Lord Pannick (CB)
My Lords, on this subject, I am on the side of the two Jeremys: the noble Lord, Lord Beecham, and Jeremy Bentham. In 1795, Jeremy Bentham wrote:
“The statesman who contributes to put justice out of reach … is an accessary after the fact to every crime”.
For Bentham, such a law tax was a denial of justice. These regulations are a denial of justice, and they are a denial of justice for the two reasons given by the noble Lords, Lord Beecham and Lord Marks. First, because the sums involved—£150 up to £1,200—may well encourage innocent people to plead guilty, and, secondly, because the magistrate or judge has no discretion to vary the charge by reference to the circumstances of the offence or the offender—in particular, the offender’s means.
I will add a further point. There is a much fairer and more lucrative way forward for a Lord Chancellor who wants to help balance the books by imposing a court charge. Let the Lord Chancellor give the judges and magistrates a discretion to charge much higher court fees to defendants who are convicted of serious crimes and who can afford to pay. The drug dealers, the bank robbers and the fraudsters can be charged the true cost of their occupying the courts for weeks in trials that end in convictions if the judge or magistrate in their discretion thinks that it is appropriate to do so. The regulations could then give the courts a proper discretion not to impose on the small fry charges that may well induce guilty pleas from innocent people and may well result in the imposition of orders for payment from people who cannot afford them. If the noble Lord, Lord Beecham, wishes to test the opinion of the House on these regulations, he will certainly have my support in the Division Lobby.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, the points to be made against these regulations are so obvious and so strong that really they do not need to be made yet again in tonight’s debate. The problems—the total lack of judicial discretion, the obvious impossibility of recovery in so many cases and the risk of excessive pressure on defendants to plead guilty to avoid the charge escalating from £150 to £520, or, in an each-way case, from £180 to £1,000—were all foreseen by the noble Lords, Lord Beecham and Lord Marks, in Committee in July of last year. They have all since been the subject of widespread criticism by a series of distinguished legal commentators in a succession of legal periodicals such as the Criminal Law Review, Criminal Law and Justice Weekly and so forth. Professor Nicola Padfield, a most distinguished legal academic and criminologist and now master of Fitzwilliam College, Cambridge, described them as “astonishing” and quoted another commentator as saying that they were the most unworthy provisions on the statute book. The president of the Law Society called them “outrageous”.
Human Rights and Civil Liberties
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, there is a dangerous tendency on the part of lawyers to talk about their own cases. Many years ago, the last Lord Chancellor of Ireland published the first of what was expected to be a two-volume set of memoirs. After the first volume appeared, there was an unaccountable delay but one of his colleagues discovered the explanation. He said, “I am told that the compositor has run out of capital ‘I’s.”.
In the general debate last week on the implications of the proposed constitutional changes, I touched on a number of the issues raised today by my noble and learned friend Lord Carswell. Rather than return to those matters, I thought it might help bring some of the issues alive if, instead, I was allowed to mention just one or two of the innumerable Strasbourg cases in which I have been involved in one form or another over the last 35 years. In the late 1970s and early 1980s, as Treasury counsel I used regularly to go to Strasbourg and there lose most of the Government’s cases. My overall record was, I think, played 12, won one, drew one and lost 10, which was not such a bad record in those days. Mostly the cases were about disadvantaged minorities, prisoners, immigrants, mental health patients and so forth. In those long-ago days, despite our nation’s proud tradition of liberty, tolerance and democracy, majority rule can now be seen to have accorded scant sympathy towards those unpopular interests.
Indeed, there were occasions when the Government were quite happy to lose their cases. Take prisoner rights: in those days the Home Office, to its credit, was keen to liberalise prison practices, but the Prison Officers’ Association was a militant union that was fiercely resistant to change. The result was a series of prison cases under the convention, all of which the Government loyally contested but comprehensively lost. So they became able, armed with Strasbourg’s adverse rulings, to force the union’s hand into accepting the changes required. For example, no longer were prison governors able to read all a prisoner’s correspondence, in and out, including his letters to his lawyers. The noble Lord, Lord Lester, will remember these cases; I rather suspect that we might have been against each other in some of them.
Another case that, rightly, we lost, was Malone, where the United Kingdom’s long-standing practice of telephone tapping—which in those days was authorised just by the Home Secretary’s warrant, with no legislative backing whatever—was struck down. That led to the Interception of Communications Act 1985. There was then a series of further adverse Strasbourg rulings and a succession of further legislation here to regulate our intelligence agencies and to control surveillance and the invasion of property and privacy rights, culminating in RIPA 2000, which is now again under review.
Later, but still before the 1998 Human Rights Act “brought rights home”, came cases such as ex parte Smith—the so-called “gays in the military” case—which the noble Lord, Lord Cashman, touched on earlier, and which I heard in the Divisional Court in 1995. Mr David Pannick QC, as he then was, to my mind comprehensively won the argument for the complainants, but the common law of England at that time made it impossible to find in their favour—a decision that was then reluctantly upheld by the late, much-missed Lord Bingham, Master of the Rolls, in the Court of Appeal. But I expressly stated in my judgment:
“I for my part strongly suspect that so far as this country’s international obligations are concerned, the days of this policy are numbered”.
So, of course, it proved to be, but it needed the convention to achieve it. In 1999, in the same case, Smith and Grady v United Kingdom, Strasbourg unanimously found us to be in violation of Articles 8 and 13, the Wednesbury irrationality test here proving too high a threshold for domestic courts to be able to adjudicate properly on the sensitive questions of necessity and proportionality arising under Article 8(2).
Doubtless, when we first signed up to the convention it simply never occurred to us—certainly not to military chiefs, who wrote a lot of fierce letters to me—that eventually we would be required by the Strasbourg court’s developing case law to allow homosexuals to serve in the Armed Forces. But do we really want, on that account, to take a backward step to where we were before the Human Rights Act brought rights home? So, too, in the case of life sentences for murder: before the Human Rights Act, under primary legislation it was solely for the Home Secretary to decide whether and when such prisoners should be released. However, Strasbourg held that it was for judges to decide the appropriate tariff term and, later, that it was for the Parole Board to decide after this term when the prisoner could safely be released.
I turn briefly to one or two cases which were decided here after the Human Rights Act came into force but which, on subsequently being taken by disappointed applicants to Strasbourg, were there decided against the United Kingdom. Take the case of S and Marper about the retention of DNA samples and fingerprints. In 2004, the Appellate Committee of this House held unanimously that it was perfectly lawful to hold these samples indefinitely in the interests of solving future crimes, irrespective of whether those who had provided them were later convicted or acquitted. Strasbourg held that approach to be unlawfully indiscriminate and eventually, of course, we legislated to require the destruction of such samples after a given period, certainly in the case of those acquitted. I confess to remaining unrepentant about our original decision in that case, as, too, about the decisions we took in the appeal committee here regarding, for example, stop-and-search powers in the case of Gillan and control orders in the case of AF(No.3), where, again, Strasbourg subsequently disagreed with us.
However, I recognise that many people, not just extreme libertarians, preferred Strasbourg’s judgments on these issues to ours. Certainly, I remain unpersuaded by the Government’s case for repealing the Human Rights Act and substituting for it a more restrictive domestic Bill. Rather, I remain convinced that there is altogether more to gain by loyally submitting to this supranational court in the wider interests of all who are within the Council of Europe countries than by defying its rulings, as, alas, we continue to do on prisoner rights, let alone by withdrawing from our basic commitment to the convention.
I agree that our courts should be careful not to gold-plate convention rights—not, that is, stray beyond the limits of those rights as already clearly established by Strasbourg. But I believe that we should continue faithfully to give effect to convention rights in so far as they have now been clearly and authoritatively established.
I have, I fear, now run out not only of capital “I”s but also of time. I can only crave the House’s indulgence for my self-indulgence.
Inquiries Act 2005 (Select Committee Report)
Lord Brown of Eaton-under-Heywood Excerpts(9 years, 9 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I begin by joining in the tributes rightly paid today to the noble Viscount, Lord Tenby. Where in this House, I wonder, will we find the wisdom that we shall be losing by his departure?
I, too, respectfully congratulate all those concerned with this impressive report, in which I played absolutely no part. Like others, I want to focus on recommendation 25, for the revoking of inquiry Rules 13 to 15 and substituting for them the single rule for flexibility set out in paragraph 251 of the report. It is, I hope, a sufficient qualification for me to speak today that Lord Salmon of Sandwich was a close kinsman and indeed largely responsible for my going to the Bar half a century or more ago. It was he, as Lord Justice Salmon, who in 1966 chaired the Royal Commission on Tribunals of Inquiry and articulated the six cardinal principles designed to secure fairness in future inquiries which, of course, by their nature are inquisitorial and not adversarial. It is the second Salmon principle that is here in point. It provides:
“Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them”.
Five years later there followed the Maxwell saga—the Board of Trade’s inquiry into Maxwell’s running of Pergamon Press—which prompted a series of spurious legal challenges to the inspectors’ conduct of that inquiry. The noble Lord, Lord Pannick, has shot most of my foxes, but this part of the history is worth emphasising. Maxwell’s complaint, that he had not been sent a draft of the inspectors’ proposed conclusions and given an opportunity for a last-minute comment on them—the process that has come to be known as Maxwellisation—was roundly rejected by the Court of Appeal, presided over by Lord Denning, as the noble Lord, Lord Pannick, explained. The inspectors—the one most severely criticised being my erstwhile pupil master, Owen Stable, Queen’s Counsel—were totally vindicated. Lord Denning’s judgment has been cited, but it is worth quoting a short passage from Lord Justice Lawton’s judgment—[1974] Q.B. 523, page 541. It puts it neatly thus:
“The researches of counsel have not produced any other case which has suggested that at the end of an inquiry those likely to be criticised in a report should be given an opportunity of refuting the tentative conclusions of whoever is making it. Those who conduct inquiries have to base their … findings … on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more”.
It is somewhat surprising that, in those circumstances and in the light of those judgments, the process of Maxwellisation nevertheless began to gain currency. It was adopted, apparently, by Lord Bingham in the inquiry that he chaired into the collapse of BCCI and, to some extent, by my noble and learned friend Lord Scott of Foscote in his arms to Iraq inquiry. Speaking some 20 years ago, just before the publication of his report, my noble and learned friend Lord Scott put it thus:
“The golden rule, in my opinion, is that there should be procedural flexibility, with procedures to achieve fairness tailored to suit the circumstances of each Inquiry”.
Ten years later came the Inquiries Act 2005, which, as your Lordships know, by Section 17 provided that, subject to the Act and to rules made under Section 41, the procedure and conduct of an inquiry is for the chairman. The following year, the Lord Chancellor made the Inquiry Rules 2006, and there are to be found Rules 13 to 15, providing, as they do, for an extreme and inflexible Maxwellisation process in all statutory inquiries.
Although, as the Government’s response to this recommendation observes, the power to send a Rule 13(1) letter is discretionary, Rule 13(3) prohibits an inquiry report criticising anyone unless they have been sent a warning letter—mandatorily, it has to contain all the detailed information set out in Rule 15—and given an opportunity to respond to it. My noble and learned friend Lord Cullen has already explained what that can amount to.
I will not repeat what my noble and learned friends Lord Cullen and Lord Morris of Aberavon have reminded us is to be found in the committee’s report about the experience of Mr—as he then was—Robert Francis on the Mid Staffordshire inquiry or indeed what was said by Lord Justice Leveson and his counsel to the inquiry, Mr Robert Jay QC, who, more than 30 years ago, was my pupil and is now Mr Justice Jay. The Chilcot inquiry, apparently treating itself as bound by these rules, although not in fact being conducted under the 2005 Act, has clearly been suffering from no less, and indeed almost certainly more, by way of “grief”—the word used by Mr Jay—delay and expense from a conscientious and thorough application of such rules. It, moreover, has suffered the additional disadvantage of having no counsel to the inquiry.
In short, the Government’s bland rejection of this recommendation is surely to be regarded as deeply unsatisfactory and indeed somewhat disingenuous. Nothing could be more obviously calculated to result in future inquiries needlessly suffering the same problems of delay and expense. I say “needlessly” because the rule proposed in substitution for Rules 13 to 15 would provide precisely the flexibility required to enable chairmen in future to ensure fairness in the particular circumstances of each case. The recommendation makes obvious good sense and should be accepted and implemented without further delay.
If I am allowed the briefest footnote, it is this. The Salmon principles themselves remain essentially sound. I respectfully suggest that, to some extent at least, they might with advantage be adopted by certain parliamentary committees—not, I hasten to say, in this House but in the other place.