Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I echo the verbal applause given so eloquently by the noble and learned Lord, Lord Falconer of Thoroton, for the contribution and consultation given by Ministers. I have one regret about the Bill, which is that the potential role of the Parole Board is not recognised properly in it. However, with some confidence I express the hope that, outside the time pressures to complete the Bill in this Session of Parliament, Her Majesty’s Government will talk to the Parole Board at the most senior levels to ensure that best use is made of the board’s skills and of its long and successful rollout of relevant training on terrorism matters to its members. The Government should not forget that the Parole Board holds a high degree of accountability in public confidence.

I support the proportionate use of polygraphs, and I am heartened to hear that the Liberal Democrats have become converted to that use. I support it as one, but only one, of a larger set of psychological and neurological tools in assessing the risks presented by terrorist prisoners if they are released. I support the extension of TPIMs to the standard formerly available through control orders. When I was Independent Reviewer of Terrorism Legislation, I repeatedly opposed the dilution of those orders in 2010-11 by the coalition Government, and I only regret the passage of 10 years to reach today’s position. I recognise with acclaim the work of my noble friend Lord Anderson of Ipswich on raising the length and standard of proof of TPIMs to a sound and realistic level. What I believe is the now achieved compromise, the limit of five years, is acceptable, but as long as prosecution always remains the preferred option.

I could but will not say much more, other than recognising that your Lordships’ House has left a better Bill than we started with. Of course, in the years to come, we shall scrutinise the operability of the Act and not hesitate to suggest further changes.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

I understand that Mr Hall’s review announced yesterday will clearly be important in updating our understanding of the challenges and that a government strategy would clearly be informed by that and, to some extent, the timing of it. However, it is not credible nor right that the Government should seek to extend sentences for terrorists without a parallel determination to improve rehabilitation and deradicalisation programmes. I very much hope that the House will support this. I beg to move.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I give my strong support to both amendments in the group: that moved by the noble Lord, Lord Hunt of King’s Heath, and the one that will be spoken to later by my noble friend Lord Ponsonby of Shulbrede.

I want to start by thanking the joint strike force on the Government Front Bench—the noble Lord, Lord Wolfson, and the noble and learned Lord, Lord Stewart—who have brought a refreshingly clear and responsive attitude towards debates on quite complicated legal issues. I can say of both of them that their engagement with Members has been exemplary; the noble Lord, Lord Wolfson, has specialised in short, 20-minute conversations that cover everything in a relatively short time. I just hope that the noble Lords will not get over the open consultation they are giving to other Members of your Lordships’ House. It is very welcome.

I too want to reflect on what was said by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, yesterday. Obviously, he is very concerned about the efficacy, if such efficacy exists, of deradicalisation programmes in prisons. I am given to understand that the successor to my short-lived appointment as Independent Reviewer of Prevent will soon be appointed. I wonder whether this afternoon, as a piece of instant gratification to us all, the noble and learned Lord, Lord Stewart, in replying to this debate may be able to tell us who that is going to be and announce the appointment. I am given to understand that it may literally be imminent.

During my time in that role, just as I came to the end of it as a result of an unwelcome judicial review, I was about to start the sort of examination that has been announced by Jonathan Hall. There is a background to it. A whistleblower came to see me from the prison where Usman Khan, the Fishmongers’ Hall terrorist, was held. On my advice, that person immediately spoke to officials at the Home Office and the Home Office was made aware of the problems. It is clear that deradicalisation programmes in prisons are not working at all well. Maybe some are working but nobody knows which ones are working and on whom.

I draw your Lordships’ particular attention to proposed new subsection (2) in Amendment 35 from my noble friend Lord Ponsonby, which sets out six criteria that need to be examined to see how these programmes are working. When I was the Independent Reviewer of Prevent, I had a review carried out of all the academic literature on Prevent, including these programmes. It exposed that no real measurement is being made of such programmes—no surprise given that the Fish- mongers’ Hall terrorist was thought to have been totally reformed. Before the programmes are put in place, they need to be carefully analysed and verified by proper, academic and, where possible, neurological research in which polygraphs are not an answer in themselves but a legitimate neurological tool as part of the armoury of an assessor.

I hope that the Government will recognise that these two amendments raise some serious issues that require the closest of examination.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.

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[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to our House. It is brave of him to start his parliamentary career in your Lordships’ House by going up against so many noble and learned Lords. It is going to be absolutely fascinating watching that.

I congratulate the noble Lord, Lord Ponsonby of Shulbrede, for bringing this amendment. I wish I had signed it, because it is very good. It is about whether we want to rehabilitate prisoners and bring them back into society or just want them to rot away and hope they disappear.

I am sure noble Lords will know that the new independent reviewer of Prevent has been announced. It is William Shawcross, whom I do not know at all. As somebody who is a critic of Prevent—I have seen the good and the bad in it—I would say that the optics are not good. Having a white man from Eton and Oxford is possibly not the message that this Government should be sending out when you have critics of a programme that could have been fantastic.

I saw one case of a Prevent programme—in Birmingham, I think—where a young man had been recovered, or rehabilitated, from a radical programme. He had been a right-wing activist, but he responded to being found a job and a house. I am not saying it is always this easy, but rehabilitation was based on taking him out of poverty and deprivation. That is something that we do not see enough of.

However, to return to the amendment, it would require the Government to review the situation and report to Parliament, and I support it very strongly.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

Article 50

Lord Carlile of Berriew Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.

[Lord Carlile of Berriew (LD)]

I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?

[Lord Faulks]

I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.

Prison Reform

Lord Carlile of Berriew Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I start by endorsing the powerful speech that the noble Baroness just made on the subject of women in prison. We should pay very close attention to her every word. I also want to congratulate the noble Lord, Lord Fowler, on obtaining the debate and on opening it so powerfully. I applaud every word of his speech and the five measures he has proposed, which I shall address briefly a little later. I used to read the articles that he wrote for the Times all those years ago, and it is wonderful to see his consistency and continuing interest in this important issue.

We come to this issue at a time when we have a Lord Chancellor, with whom I have spoken about this subject, who I believe is completely credible in his determination to reform the penal system. He has applied his considerable critical faculty to whether the penal system is successful or not, and I think the answer he has reached is a resounding “No”, or at least “Not very”. I look forward to him taking his officials with him, and I hope that he will be in post long enough and not be reshuffled before we can see real reform to the penal system.

I am not sure what I can add to this debate, but I suppose I have spent longer in the cells than almost anybody else in this House—barring two or three people. I have on occasion had to sit in the cells, in cases that I do not count among the forensic triumphs which I talk about all too easily at dinner parties, and explain to my clients why they have been sent to prison for short sentences. As an illustration, I have always found it very difficult to explain to a man or woman who has been sent to prison for causing death by driving without due care and attention what the utility of the prison system is in their case, particularly as they tend to be middle-aged or older people who have never been in trouble with the law before. We ought to learn from some of the, in my view, ludicrous guidelines that are set upon us. I have sat as a recorder in the Crown Court on numerous occasions and have felt I had to send somebody to prison because the sentencing guidelines were just too prescriptive and did not allow for the subjectivity that the case needed.

Perhaps the headline of this debate for me, so far, is this: if a probation officer was given a case load for one year of one person and acted as a sort of personal trainer for that person for one year, we would save money for the state. The noble Lord, Lord Fowler, compared it to Eton fees, but it may be even more powerful to say that, if we committed probation officers to looking after people who are not sentenced to custody, training them in their everyday lives, letting them understand how to manage their money, giving them real quality time, we would achieve a much better system than sending such people to prison.

I turn to the imperatives of the noble Lord, Lord Fowler, which, as I have said, I share. First, of course, punishment by imprisonment should be more than the deprivation of liberty; it should also be an opportunity. As does Michael Gove, I take the view that prison education needs enormous improvement. I absolutely applaud the decision to allow books to go to prison. What an absurd decision it was to say that prisoners should not receive books. Recently, I represented a man who was convicted of manslaughter—a rather intelligent man. He said as he was going to prison, after the case was over, “I’m going to do an MBA”. I asked him why, and he referred to what the current Lord Chancellor had said about the advantages of being educated in prison and about released early if you do that—and that is very good.

Secondly, it is not just overcrowding that is the problem; the sites of prisons are unsuitable. In places with young men, there is only one playing field and one gym, at which they have to queue to have their opportunity, as well as insufficient educational provision.

The noble Lord, Lord Fowler, referred, thirdly, to the dumping ground. We had an eloquent contribution from the noble Lord, Lord Bradley, about mental health. If somebody goes to a hospital and they are going to be in a hospital for a long time, they are given a designated nurse to look after their case and to ensure that it follows the right track. Why, when someone is sent to prison for a long time, are they not given a designated officer to try to ensure, as if they were a sort of tutor, that every opportunity is made available?

I agree that we should use community sentences more, particularly problem-solving courses.

Finally, I totally agree with the noble Lord, Lord Fowler, that we should give more opportunity to governors. I was once taken by a governor to a falconry course in a young offender institution. One of the young offenders told me that he was leaving the following week, that he had a job on an estate in Scotland and how he was looking forward to it. I came back to this place and thought, “I’m not going to tell anyone about the falconry course because the Daily Mail will get hold of it and call for it to be abolished”. But how useful that was.

My coda is to say: let us now start to apply imagination to sentencing policy so that those who come out of prison come out better and those who might go to prison do not do so, wherever possible.

Prisons: Young People

Lord Carlile of Berriew Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, there is a great deal of evidence in this debate of the need for action and change in the way in which young prisoners are treated. I congratulate the noble Lord, Lord Harris of Haringey, on his report and on instigating this debate, as well as on producing unanimity on all the main issues under discussion—so far, at least. I look forward to hearing from my noble friend Lord McNally, who is now chairman of the Youth Justice Board. The YJB has done a great deal of positive work, particularly in the area of reducing the numbers of young people held in custody and in improving the way in which they are treated. Shortly we shall also hear from the noble Lord, Lord Bradley, who some time ago now produced a seminal report on the issues arising from mental illness occurring when people are in custody.

In June 2014, sponsored by the Michael Sieff Foundation and the National Children’s Bureau, I had the privilege of chairing an all-party parliamentarians’ unofficial inquiry, which took evidence into the youth justice system and which contained Members of all political parties in both Houses, including, significantly, the current Solicitor-General, Robert Buckland QC, who had very clear views that are consistent with everything that has been said in this debate. We produced a report recommending numerous changes in the youth justice system, some of which I shall refer to in a moment.

The point of mentioning all those reports is to show how much learning there is, and how much advocacy there has been, for change in the youth justice system. I urge upon the Minister that the Government need no more evidence of what is needed by way of change. Indeed, in listening to this debate, if all the Minister did was to listen once again to the eight-minute speech of the noble and learned Lord, Lord Phillips of Worth Matravers, he would see a summary of the changes in policy that are required.

Of course, one of the main issues is overcrowding, not in the youth justice system but in the adult system. The noble and learned Lord, Lord Phillips, mentioned some numbers, as did the noble Lord, Lord Fellowes, a few moments ago. As they gave those figures I recalled that when I first became a Member of another place in 1983, many MPs at that time were expressing outrage that the prison numbers had reached 35,000. I do not notice that our country is a much more lawful place now, with 84,000 people in custody, than it was in 1983, when there were 35,000. Perhaps there is something to be learned from that simple statistical comparison.

Very specifically on the youth justice system, I will start with a kind of metaphor. If a child is ill and needs a routine elective operation, inevitably it is sent to a paediatrician before a decision is made as to what treatment should be given. The paediatrician is not someone who simply has the label “Paediatrician” attached to him or her, but has to have learning, education, experience and qualifications, all specific and expert to the paediatric advice which they give. One of the conclusions that was reached by the parliamentarians’ inquiry to which I referred a few moments ago was that that sort of experience does not exist in the youth justice system. Yes, of course there are some very expert people, but it is pure chance whether a real expert is involved in a case. Somebody can be called a youth justice although they have no education, knowledge or training in youth justice—at least worth the name.

A solicitor or a barrister can prosecute or defend in a youth court without having any understanding of, or training in, the specific requirements of dealing with young people. Over my 45 years at the Bar, nothing has changed in that respect. My first ever contested case as a barrister was in the Camberwell Green juvenile court, as it was called, when I defended a young person charged with an offence of criminal damage. I had no idea what I was doing. Happily for the young person concerned, the result of the case was favourable, but I had absolutely no idea, and have none now, how that result was achieved, because I had no material training.

Today, young solicitors and barristers prosecute and defend in youth courts and they still have no such specific understanding or training. One of the recommendations of our inquiry was that no justice—whether a full-time district judge or a part-time justice—should sit in cases without such training. I greatly value the work of youth justices and am delighted to see a very distinguished one, the noble Lord, Lord Ponsonby, in his place, but there is currently no requirement that they should have any real expertise in what they do. Indeed, there is no requirement that someone who is regarded as a youth justice should always sit on a case involving a young person.

Furthermore, we recommended that what I think in the trade is usually called “ticketing” should be applied to lawyers, whether they be solicitors or barristers, who appear in the youth court because it is a specialised area. Understanding what has happened in a young person’s life is much more difficult than most other things that advocates do. The Bar Standards Board, to its credit, has set up a review of this matter with an in-depth investigation into the ticketing issue. The Law Society has been much less compliant and shows real resistance to any form of expertise ticketing in this area because, of course, it would limit the number of solicitors who are able to appear in such cases. I hope that it will soon change its mind.

If we had experts dealing with these cases, surely we would be able to ensure that better, more constructive non-custodial disposals were achieved. We advise that youth scrutiny panels should be established by the Youth Justice Board and local authorities to focus on diversion measures so that these trials can be avoided if possible. However, when they come to court, we advise that there should be comprehensive case assessments and family group conferences, where the real problems that affect the young person’s life can be assessed. As has been said repeatedly, the young people who find themselves in court have almost always had chaotic lives. As the noble Lord, Lord Judd, emphasised, for many of these young people custody is the most comfortable place they have ever been, and we do not want that to be perpetuated.

My final point is about the rehabilitation of offenders. Young people who have been in trouble as teenagers are sometimes unable to obtain jobs because their records follow them. I urge upon the Minister that the Government should examine that carefully and try to ensure that, when young people who have been in trouble become adults, after a reasonable time they are no longer saddled with a criminal record.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Sheikh (Con)]

My Lords, I say at the outset that I have met and spoken to many people across the Muslim community in recent weeks concerning the Private Member’s Bill. It should be noted that the Bill does not name any religion. However, there is widespread concern that it seeks to demonise Muslims in particular by giving an incorrect impression of our values.

First and foremost, it must be appreciated that in any dispute—civil or otherwise—one party may feel aggrieved if a decision does not go in their favour. We must talk to all the parties concerned.

There is an incorrect presumption that sharia councils arrive at decisions that are legally binding. Normally, in fact, they provide mediation services and do not consider themselves above the law. Any agreement arrived at following mediation is binding only if both parties mutually agree to it being endorsed by a court of law. If both parties prefer the matter to be considered by arbitration, this should be allowed. In such cases, the normal rules of arbitration apply and the arbitration is binding on both parties unless there has been an error in law.

There is a misconception that Muslims in this country would like sharia law to be applied generally. However, the reality is that nobody talks about sharia law as the law of the land; Muslims are clear that English law should, and does, ultimately prevail.

Some Muslims have an Islamic marriage, known as a nikah, without also having a civil wedding. Ideally, I would like to see imams performing a nikah only after a civil wedding has taken place. We should perhaps look at the possibility of amending the Marriage Act 1949 to address this issue. Having said that, if an imam receives a request to perform a nikah without a prior civil wedding, it is imperative that he emphasises to both husband and wife the drawbacks of a nikah-only marriage.

Many couples choose to cohabit without getting married and we do not pass any judgment on them—nor should we. More than 3 million couples in this country are cohabiting at the moment. When a nikah takes place, a contract is signed between the man and the woman containing the terms and financial obligations of the marriage. Under Islamic law, a man can divorce his wife by stating this. If a woman feels that her marriage has broken down and that they should divorce, she can ask the man to divorce her. If the man refuses to divorce her, she can approach the sharia council and petition for a divorce to be issued. It is therefore essential that there are sharia councils that she can approach for this to take place. I believe that all Muslims should be encouraged to use the already- drafted Muslim marriage contract, which perhaps needs simplifying.

I should emphasise that sharia councils do not obstruct or attempt to influence proceedings where issues such as domestic violence are concerned. In fact, women are advised to contact the police.

At one point the Bill refers to intestacy. It must be noted that, in the event of the death of a person who has not left a will, the estate will be administered according to the principle of the laws of intestacy in the country. Sharia law is not therefore relevant. If a person wishes to make a will distributing his wealth according to sharia law, he must be entitled to do so.

[Lord Carlile of Berriew (LD)]

I apologise for interrupting the noble Lord. As a matter of fact in sharia law, if a man wishes to obtain a divorce, does he have to ask his wife first, before he approaches the sharia council?

[Lord Sheikh]

No. Under sharia law he does not have to do that. If sharia councils make unfair decisions, these must be dealt with on a case-by-case basis. I feel that there must be a mechanism to deal with such cases and that we should put in place an appeals procedure.

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[Lord Carlile of Berriew]

My Lords, in supporting the Bill I join in with the well-deserved tributes made to the noble Baroness. The one jarring note during the debate has been the suggestion that the Bill is an attempt to demonise Islam. If it was, of course, it would be a disgraceful Bill—but it is not. The Bill is an attempt to demonise discrimination, particularly against women, and falls within a virtuous circle in which we should all wish to stand.

The isolation of women from the law is not a new phenomenon. However, the inevitable consequence of such isolation is discrimination against women. Some of that discrimination is casual and negligent, but bad enough for that. However, some of the discrimination is misogynistic, manipulative and, most of all, obsolete. We should take action to drive that kind of discrimination out of our law. The Minister would be right should he say that this proposal was superfluous. Nevertheless, I do not agree because it would emphasise the need for such discrimination to be driven out of our law. The awareness and availability of the law will be heightened by the passing of this Bill.

I said earlier that isolation of women from the law is nothing new. Indeed, as I was thinking about this Bill, I was driven to remember another Friday afternoon, albeit in 1975, when a woman from the beautiful Welsh town of Bala was brought to my chambers in Chester. She was a middle-aged woman with children. She told me when she arrived that she had never been to England before.

[Lord Sheikh]

Does the noble Lord feel that it is for the community to take remedial action? This is how I feel and I would like his views on it.

[Lord Carlile of Berriew]

I hope the community will take immediate action but, in my view, the law needs to take action as well, and that is why we are here today.

The woman who came from Bala told me that she had never been out of Wales before—she had never been to England—and that she was suffering from violent and other abuse by her husband which was affecting her children and her home life. As I said, it was a busy Friday afternoon, and because the law was available we were able to go and see the busy judge—albeit, being a Friday, he was busy in his garden at the time. He took us into his dining room and there, because we were using the law which is available to every citizen, she was able to obtain an injunction, which had the violent husband out of the house in Bala by tea-time; she was able to secure the lives of her children; and in due course she was able to obtain all her other rights.

She had been brought by her Welsh solicitor—who, interestingly, was called Elfyn Llwyd, who later played a distinguished part in the life of this nation. She came to see me in my chambers only because one of her friends had said, “The chapel is not going to achieve anything for you. You must take advantage of what the law offers”. Of course, because legal aid was available—at least at that time—her rights were obtained through the offices of the state. As the noble Baroness, Lady Cox, has said, some women today experience exactly the same kind of discrimination that the Welshwoman from my experience suffered in 1975. We have to take steps to rectify that anomaly.

I am not against religious courts. I said earlier that I used to be in chambers full time in Chester. In Chester Cathedral there is a wonderful consistory court. It is one of the most beautiful little parts of a cathedral building that you can visit. Religious courts have their place but they are for religious matters. Mediation and arbitration have their place—increasingly so—and should be used whenever possible, but there must not be a pretence that there is a form of mediation that is better than the law that applies to every citizen.

We must not do anything or allow any measure or tribunal to diminish legal rights and dilute protection, particularly for those who have not always been able to obtain their rights in an equal way, whether those rights be physical, financial or moral. It is for those reasons that I support this excellent Bill.

Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations 2015

Lord Carlile of Berriew Excerpts

Monday 7th September 2015 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate my noble friend on moving this Regret Motion. I sit as a magistrate in London in the family courts, the youth courts and adult criminal courts and I frequently hear cases where the defendant or applicant is a litigant in person. From the court’s perspective, some litigants in person represent themselves very well. They understand the advice that they receive from the clerks and manage both the legal process and the practical aspects of navigating the court system through to a conclusion that they believe is satisfactory. However, some—I would say many—litigants in person have difficulty understanding the guidance that they are given when in court. They struggle with the whole procedure and, at the end, do not feel that they have been treated justly by the system that they have grappled with.

I want to tell noble Lords an anecdote from about a year ago. It concerns a woman who turned up in court charged with fraud against her employer. She was a litigant in person. She came into court and was correctly identified. The clerk then asked her whether she was guilty or not guilty. Her reply was, “I am guilty but I want to plead not guilty”. When asked to explain herself, she did indeed have a rationale for saying that. She was imminently due to have a medical operation. If she had pleaded guilty she would lose her employment and not be able to have the operation, so she was going to delay the finding of guilt until a trial.

It could be argued that the defendant had told us that she was guilty and that she was planning to commit a further fraud on her employer. But as a court we were limited in the advice that we could give to her other than to advise her of the benefits of a guilty plea. We had 30 other cases to deal with that day. We filled in the necessary forms and the matter was indeed put off for trial. If that lady had had some robust defence advice, she may have decided to plead guilty as she had indeed told us she was guilty. But her right to plead not guilty trumped everything else, resulting in the additional cost of the trial.

The overwhelming point that I want to make is that we see many vulnerable people in courts—people who are not able to represent themselves. There is a concern. The Magistrates’ Association, together with other interested bodies, has tried to judge whether the justice system is functioning properly with this increase in litigants in person. I draw the House’s attention to a survey of magistrates published on 13 January this year. Views were taken before costs came in in February 2014 and again in November 2014 after the increase in litigants in person. The survey shows a noticeable increase in the dissatisfaction expressed by magistrates because they felt that the system was not being as just as it should be.

I understand that there are a lot of surveys, but the current chair of the Magistrates’ Association, Richard Monkhouse, was a statistician in a former life and this is a robust piece of work. I have looked at it myself and I have a scientific background. I hope that the Government will look at these figures carefully because they raise a worrying growth in uncertainty and dissatisfaction with the increase in the number of litigants in person.

A wider point should be made. Other aspects of the legal and court system also feed into the general sense of dissatisfaction and the feeling that the court system as a whole is not properly offering justice to people. We have heard from my noble friend about the imposition of the criminal courts charge. In the family courts, we have had cuts to legal aid and an increase in the costs of drug and alcohol testing, which reduces access to fairness for people. We have had the increase in tribunal fees and cuts to CABs. These are off-topic for the purposes of this debate, but they add to the sense of many vulnerable people feeling that the court system as a whole is not open to them as it should be.

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Ponsonby, who brings a rich vein of evidence from his experience as a lay magistrate to your Lordships’ deliberations. I declare the interests of having been a barrister practising criminal law for 45 years and having spent 28 years, until I retired from these roles at the end of last year, as a part-time judge at various levels and, particularly for this debate, as a former president of the Howard League for Penal Reform.

In a few moments, I shall talk about prison law specifically, but I wanted to address some issues about the generality of this debate, if I may. I agree with the broad thrust of what has been said about the effect of the regulations. However, I want to commend the Lord Chancellor for his willingness to engage with the legal profession, both the Bar and the solicitors, during recent weeks and months. This has been appreciated. Other things could be done than cutting criminal legal aid in the way which has been described.

Assisted Dying Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the right reverend Prelate the Bishop of Carlisle, not least because he and I have a greater insight than most into each other’s parliamentary lives, as we receive a great deal of each other’s post on a mostly daily basis.

I hesitate to disagree with words used so firmly by the noble Lord, Lord Pannick. I do so particularly because, not so long ago, he appeared as my counsel in a public law case with his customary brilliance. However, the emphasis of his assertion, that this Bill is perfectly clear, is in my view just plain wrong, mainly for the reason given so clearly by the noble and right reverend Lord, Lord Harries of Pentregarth. As he was speaking, I was thinking back to the death two years ago of my then 98-and-a-half year-old mother. The family took enormous steps to assist her death. We put her in the place that we thought was most comfortable for her death—she did not agree, but that was characteristic of our robust and loving relationship. We took steps to ensure that all her grandchildren and great-grandchildren went to see her. We brought her her favourite alcoholic beverage, something rather eccentric called Wiszniowka. We did everything we possibly could to make her as comfortable as was possible. But we did not assist her to commit suicide. She died a natural death as a result of, unfortunately, rampant disease which she experienced in old age.

We debated earlier this week part of another Bill, the Counter-Terrorism and Security Bill, in which something was described as the Privacy and Civil Liberties Board, which was anything but a privacy and civil liberties board—it was a perfectly legitimate suggestion, but it was not what it said on the tin. This Bill empowers people who would otherwise be committing a serious crime to be excused from the criminal consequences of their action. It enables people—apparently doctors under its provisions as they stand—to kill other people deliberately, after consideration, with purpose. Anyone who believes that that is not the case is not taking a realistic look at the Bill. It is a matter for Parliament whether that is a proper thing for Parliament to do—I am not commenting on that at the moment, although I am opposed to it—but it is misleading to the public not to say what the Bill does, both in a provision such as that proposed by the noble Baroness, Lady O’Neill, and in the Title, which we will debate at a later stage, if we get to it.

When we include in the Bill words like those proposed by the noble Baroness and others, we are providing clarity which tells us two things about impact: first, it tells us about the impact on the person who is giving the assistance—as I said, they are committing a serious act which would otherwise be a breach of the law which might well land them in prison; secondly, we are describing the impact on the person who is wishing to die. We are saying that this is not a normal death, even if it is a death which is assisted by what is sometimes called, very clearly, the doctrine of double effect. We are making it clear that that person is dying because they wish to do so.

I am surprised to hear so much opposition from supporters of the Bill to giving within it a clear description of what they intend. If they do not accept this kind of amendment, then others, including some journalists who have been commenting favourably on the narrow scope of the Bill, may well come to the conclusion that it is indeed just a stalking horse for euthanasia.

[Lord Warner (Lab)]

My Lords, I have been sitting through these debates for 12 years—

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Moved by

[Lord Carlile of Berriew]

13: Clause 2, page 1, line 13, leave out “a registered medical practitioner” and insert “at least two registered medical practitioners, with one of whom the person has been registered for medical care for at least six months immediately prior to making the declaration at section 1(2)(b) and at least one of whom has diagnosed the terminal illness and treated the person in relation to that terminal illness,”

[Lord Carlile of Berriew]

My Lords, I beg to move the amendment standing in my name and in the names of the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries of Pentregarth. In relation to pre-emption, Amendment 13A is part of this group, and will be moved by the noble Baroness, Lady Finlay of Llandaff. It has the effect of amending the term “registered medical practitioners” to “licensed medical practitioners”. I make it clear at the outset that I have no objection whatever to that amendment being made. Indeed, I regard it as a helpful amendment to my amendment, for a reason that I shall now give.

As I understand the situation, a registered medical practitioner could be any medical practitioner who is on the register. I suppose that that is stating the obvious, but that could include, for example, a medical practitioner who is retired but who has chosen for one reason or another to remain on the register. It could include a registered practitioner who has not laid hands on a patient for a very long time. A licensed medical practitioner is one who is shown in the General Medical Council’s relevant documents to hold a particular expertise or expertises that are current. I am sure that the noble Baroness, Lady Finlay, will explain that more expertly than me in a little time.

I regard this group of amendments as extremely important, because they come at the gateway to assistance with suicide and assistance with dying that is provided for in this Bill. The gateway is diagnosis; nobody can go through that gateway unless they have been diagnosed as terminally ill—and what terminally ill means is defined.

I cite table 1 on page 7 of the Oregon’s Death with Dignity Act Annual Report for 2013. Its figures show that the median patient-physician relationship prior to assisted suicide in Oregon in 2013 was 12 weeks. That means that for the 752 people in Oregon recorded as dying using the Death with Dignity Act, half knew their doctor for 12 weeks or less.

I make no complaint about these issues if we are to have this Bill as an Act, but what are the issues that the diagnosing doctor or doctors are to certify themselves as satisfied about? First, it is that the person concerned has an inevitably progressive condition. That is quite a serious medical diagnosis, as is plain, to be determined at the date of the diagnosis. Secondly, it is that it cannot be reversed by treatment. In Clause 2(2), it is stated:

“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.

That is a very complex provision. The medical determination of whether medication or other treatment “only relieves the symptoms” is far from simple. How is one to judge whether it “only relieves the symptoms” or whether it provides some form of remission which goes rather further than only relieving the symptoms?

Then there is the provision in Clause 2(1)(b) that the person,

“is reasonably expected to die within six months”.

There was a discussion on Radio 4 this morning about the meaning of an expectation that someone will die within six months. This to a great extent is not science in the sense that no doctor, save in the most extreme circumstances, can predict when a person will die. Whether a person is potentially on the cusp of being expected to die within or around six months is certainly not something that I understand has ever been scientifically researched in full. Indeed, I recall in a debate some years ago a most compelling and memorable speech given by the noble Baroness, Lady Symons of Vernham Dean, in which she described exactly a circumstance in which it was predicted that someone extremely close to her would die within a very short time, and the person is still alive today. So this is very inexact medical science, and it is asking a great deal of doctors to make that kind of diagnosis.

What are the characteristics that might make that kind of diagnosis reliable and reasonable? I am sorry; I referred to my mother earlier and I am now going to refer to my father, who was a general practitioner in Burnley, Lancashire. One of my treasured possessions, which sits by my desk at home, is his last visiting book for the last year he was in medical practice. I spent much of my very happy childhood being given sweets by dear old ladies whom he visited on his rounds; it was one of the things that made me go on his rounds with him in his Austin A30. I reminded myself of what he used to do by looking at the book this morning. First, he used to visit his patients. I do not believe that anyone in my family has had a house call from their general practitioner in the 21st century, but it used to be very common. As I refreshed my memory this morning, I saw that he used to place his rounds in two columns: one was the calls that had been taken by the surgery—people who were ill and wanted the doctor to call—and the other was what he used to call, perhaps slightly unattractively, his “chronics”. His “chronics” were patients he visited on a periodic or regular basis. Some of them became friends to him and he knew all about their lives. He knew about the progress of their illness and about their domestic circumstances. He knew whether their children cared for them or took any interest in them. He knew whether they were poor or affluent and was able to ensure in the terms of those days that whatever statutory care was available was provided. In other words, he and doctors like him had a relatively intimate knowledge of their patients. When he met them in the streets of that great east Lancashire town, he could never remember who they were but he could always remember exactly what was wrong with them and members of their families. It is a bit like we lawyers remembering cases without necessarily being able to remember the names of those cases.

I know that it is dangerous to be nostalgic about medicine although, if we look at the state of the health service today, perhaps nostalgia is decent evidence, but when we look at the relationships that such doctors have with their patients, it is undoubtedly the case that they have, and had, a body of knowledge on which to base their diagnosis. We are not talking about diagnosing measles. We are not even talking about diagnosing some extremely unpleasant diseases; we are talking about diagnosing if and when someone is going to die.

My view, and that of the noble Lords who have also signed this amendment, and, I hope, of many others, is that nobody should go through the gateway of this Bill unless they have been seen by medical practitioners—I respectfully suggest to your Lordships that it should be no fewer than two—with at least one of them having had relevant care of that patient for at least six months, so that they have been able to build up a knowledge of that patient. It is difficult to imagine somebody with a terminal illness who has not had a relationship of six months with a doctor unless they have been involved in a trauma that has happened very recently.

[Lord Avebury (LD)]

Would my noble friend consider the case of patients with mesothelioma—perhaps we might hear also from my noble friend Lord Alton on that issue later—a disease that develops rapidly and which is normally fatal in a period of less than 12 months? Is it not probable that a patient who suddenly develops mesothelioma will not have been seen by a doctor for the period that the noble Lord requests?

[Lord Carlile of Berriew]

My noble friend, for whom I have the utmost admiration and with whom I have worked on many issues, I am afraid misses the point of what I am saying. I know the work that the noble Lord, Lord Alton, who was referred to, has done on mesothelioma. I absolutely applaud that work and I will give way to him in just a second when I have finished this paragraph. What I have in mind is that in a situation like that there will be not only the specialist who may be treating an issue that has arisen recently but a general practitioner who has had that patient on their books for a considerable time, who will have records that they can look at which give them that knowledge, and who will have seen the patient in the past. What I am seeking is exactly the combination between a licensed medical practitioner—I accept that they should be licensed—who has had some experience of dealing with the patient and a specialist who may be treating the symptoms of the particular illness.

[Lord Alton of Liverpool]

The noble Lord has entirely answered the remark of the noble Lord, Lord Avebury, about mesothelioma. It is indeed predicted that some 60,000 more British people will die of that terrible disease over the next 20 to 30 years. However, the point is that they have general practitioners who care for them, and of course they have specialists who they then go to see as well. In many ways, it reinforces the noble Lord’s point—that having two doctors to examine a patient and be with them—to go through the gateway, as he put it earlier—is the right thing to do, as expressed in the amendment.

[Lord Carlile of Berriew]

I am grateful to the noble Lord, Lord Alton. I see that I have spoken for 12 minutes and want to bring my remarks to a close.

[Lord Pannick]

My Lords—

[Lord Carlile of Berriew]

Well, I would bring my remarks to a close, but my admiration for the noble Lord who has just stood up is almost unallayed, and I shall therefore give way.

[Lord Pannick]

I am grateful. I just want to ask for clarification. The noble Lord’s Amendment 13, as I understand it, would specify the identity of the doctors who may make the relevant declaration for Clause 2 purposes. However, what if those doctors, for whatever reason, are opposed to the Bill, or Act of Parliament, and do not wish to participate? Should the patient then be prevented from taking advantage of this legislation?

[Lord Carlile of Berriew]

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

[Lord Warner]

My Lords—

[Lord Carlile of Berriew]

No, I am not going to give way to the noble Lord; he can speak in a moment. I do not mean to be discourteous, but I know that he is well able to make his own points, and he will be able to make them in as contentious a way as he wishes, and as is sometimes habitual.

[Lord Warner]

My Lords—

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[Lord Carlile of Berriew]

I am not giving way to the noble Lord, I am afraid—not on this occasion. He has opportunity to speak and I have now been on my feet for 15 minutes. In closing, my suggestion to your Lordships is that if we are to have this legislation and if the system is to be safe, we must have one in which the gateway is a strong gateway and not merely a flimsy wicket. I beg to move.

Amendment 13A (to Amendment 13)

Moved by

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[Lord Hunt of Kings Heath]

My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.

[Lord Carlile of Berriew]

I am happy to clear it up. My understanding—and I am happy to be corrected by the Minister if I am wrong—is that if I am nominally registered with Dr A, who is in a practice with Drs B, C and D, and I go for treatment and am seen and treated by Dr D, I am being treated by a doctor with whom I am registered. That is because my registration with a doctor in a practice includes registration and treatment by any other doctor in that practice.

[Lord Hunt of Kings Heath]

That is a very helpful response. Can the noble Lord explain the circumstances in which a patient is not so registered? At any one time there are thousands of patients who are not registered.

[Lord Carlile of Berriew]

If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.

To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.

[Lord Faulks]

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

[Lord Falconer of Thoroton]

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

[Lord Carlile of Berriew]

I have a serious question for the noble and learned Lord, which I am sure he will answer seriously. The thrust of what I am saying in my amendment, with my noble colleagues who have signed it, is that the gateway that is provided in Clause 2 should be subject to two doctors—doctors who can be shown to have some considerable knowledge of the person’s case. Is he willing to accept that principle?

[Lord Falconer of Thoroton]

I do not accept it in the way that the noble Lord has formulated it. I say that there should be two doctors who have properly, on good evidence, considered the case. It may well be that neither of those doctors has been engaged in the long-term or even short-term care of the person. But I would be satisfied with the gateway involving two doctors who have gone through a proper and rigorous process, and I disagree with the noble Lord when he says that they have to have known the person for six months. Indeed, I do not think he is even saying that because registration over a six-month period would not necessarily involve any contact whatever with the general practitioner.

[Lord Carlile of Berriew]

I am grateful to the noble and learned Lord, who has made a helpful response, up to a point. If the Bill were to go further, would he be prepared to enter into discussions on the clear basis that Clause 2 would have to be amended to ensure, first, that there were two doctors involved in that gateway—whatever the gateway is, because we are going to consider another group shortly that is relevant—and, secondly, that it should be shown that at least one of those doctors has had detailed past consideration of the patient’s case? It seems to me that that sort of measure is the only way of ensuring that we do not have a Shipman-type situation.

[Lord Falconer of Thoroton]

The first point about the two doctors is dealt with in Clause 3, because the second doctor has to certify that he is content. The noble Lord is getting frightfully agitated. If he looks at Clause 3, he will see that it requires certification by a second, independent doctor.

Secondly, the noble Lord asked whether I would enter into discussions in relation to putting in the Bill that one of the doctors has had to be involved in the care of the patient. No, I would not because I think it is satisfactorily dealt with in the Bill as it stands, for the reasons I have indicated. I will answer the noble Lord, Lord Jopling, first, and then go to the noble Lord, Lord Maginnis.

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[Lord Carlile of Berriew]

My Lords—

[Baroness Masham of Ilton]

Can the noble and learned Lord say if he thinks that pressure might be put on some vulnerable people from family members who want to save money?

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Amendment 13A withdrawn.

[Lord Carlile of Berriew]

My Lords, perhaps the Minister or the Chief Whip will correct me if I am wrong, but I understand that the position is that I should now wind up on my amendment after the noble Baroness, Lady Finlay, has dealt with her amendment to my amendment. I apologise to the noble Baroness, Lady Masham; I simply did not see her trying to intervene. I did not intend to be discourteous.

This debate has taken—it just disappeared from the screen—something like two and three-quarter hours, which is a clear indication of the importance of the issues we have been discussing in this group of amendments. I express my gratitude to noble Lords who have taken part, including of course to the noble and learned Lord, Lord Falconer, who has responded to this debate and intervened at various times in a helpful and constructive way. He suggested at one moment that I was agitated. Agitated—no; frustrated—yes. I will explain my frustration.

The noble and learned Lord, as far I can see throughout the latter half of this debate, has addressed Clause 3. The noble Baroness, Lady O’Loan, who is a distinguished and talented lawyer, saw straight through that and made it clear that we are dealing with Clause 2. That clause is about the gateway. Clause 3 is about the certification. There is a very serious point of principle about the standards that there should be at the gateway. I make no apology for re-emphasising that it is my view—otherwise I and others would not have tabled these amendments—that the gateway to this whole process must have medical, intellectual, empirical and objective integrity. None of those words are tautologies. It is the sum of them that we need for this gateway.

I do not know how many of your Lordships have read Dame Janet Smith’s three reports on the Shipman case. It was one of the biggest compendious inquiries that there has ever been. This issue was not really adequately addressed, in my respectful view, in this debate. In a quiet and beautiful valley in the same part of Lancashire and Yorkshire that I was dealing with earlier—in fact, in Todmorden, which is just over the border, in that county that Lancastrians rarely name—Dr Shipman probably killed a couple of hundred people. He was regarded as a kindly, gentle general practitioner to whom you gave a cup of tea and whom you could invite into your house with confidence. I want to be sure—and I know that others in this House want to be sure—that the gateway is safeguarded against people like Dr Shipman, for the reasons illustrated so well in her reports by Dame Janet Smith.

Furthermore, I reject the arguments that have been mentioned that there are real, practical difficulties with this amendment. There may be a few cases—and when we have dealt with the principle, we can look at the detail—in which people move away either from the general practitioner’s practice that has been dealing with them or from the specialist who has been treating the illness that has been determined as terminal. However, in my view those cases are going to be very few in number, far fewer than has been suggested by some of your Lordships, and that should not be an inhibition at this stage to the establishment of a clear safeguard and principle of safety.

The point was made by the noble and right reverend Lord, Lord Harries, that we are talking here about safety. We should hearken very carefully to the comments made by the noble Baroness, Lady Campbell of Surbiton, in her first intervention. She happens to represent in an informal way in our House that very important constituency of disabled people. She has told your Lordships that many disabled people outside this House do not have reassurance that this Bill provides in its gateway sufficient safeguards. In itself, that seems to be a sufficient reason to determine whether we wish to have the principle in this amendment. Furthermore the noble Baroness, Lady Grey-Thompson, and indeed the noble Lord, Lord McColl, highlighted the fact that the Royal College of Pathologists has shown in many cases that the cause of death given was just plain wrong. That shows how important it is to have robust safeguards.

We had some references to forms that I must admit I am fortunate enough never to have read, relating to benefit rules. To me, referring to those forms is a complete absurdity in the context of this debate. Those forms are about whether people are going to be paid sums of money by the state for their maintenance. That is no doubt an important issue, but it pales into insignificance on the issue of principle that relates to one person helping another person to commit suicide with a huge and lethal dose of barbiturates.

I could make many more comments, but I note that it is now 2.50 pm. In my judgment, there is a real principle and there are a lot of people waiting for your Lordships’ determination of that principle. To me it is as simple as this: do we want the gateway to be safe or are we prepared to take risks with people’s lives? With that in mind, I believe that the opinion of the House should be tested.

Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I support the noble Lord, Lord Ramsbotham, largely because since this House last discussed secure training colleges, two secure training centres have been given notice of closure by the Youth Justice Board. One of those, Hassockfield, was in my constituency. What lessons have the Government learnt from the introduction of secure training centres? My recollection is that I opposed them when we were in opposition when the legislation went through in, I think, 1996. My Government said that they had to carry that through because the contracts had been signed. When Hassockfield opened, I was contacted virtually daily by the police who said, “The children in here are too young. They do not understand what it means to be in a secure establishment. We are being called every day and they’re ending up in police cells”. Indeed, they wrecked the place. So the initial contract, which was given to an American company, then went to Serco. Someone from the Youth Justice Board had to be in there full-time to sort out the regime, and since then Hassockfield and, I understand, the other secure training centres have not taken many children under 15 because the regime in a secure centre, even with what Ofsted says is now very good education, is not suitable for young children.

The other issue is about being near home. There was a tragedy at Hassockfield. I discussed it at great length with a whole range of people, and one of the reasons for that young boy taking his life, although by no means the only one, was his distance from home and his contact with home and his own community.

The Government are taking enormous risks with the safety—and the ability to change and handle their lives—of children in incredibly complex difficulties. In relation both to having one centre in the middle, to which children have to travel a long way, and to the issues of the age group and including girls, the Government need to learn the lessons of their own history in setting up secure training colleges. They should think about this again and look at the language used when the colleges were introduced. It was very similar to the language that Ministers used in this House today and in the Commons last week. If they do so they will recognise that they are making a mistake and that they really do need to rethink this policy.

[Lord Carlile of Berriew (LD)]

I will ask the Minister three short questions, but before I do, perhaps I may give a little reassurance to the noble Lord, Lord Ramsbotham, who moved the amendment. He encouraged Members of your Lordships’ House not to vote according to party diktat. As a Liberal Democrat, I can assure him that although we are given advice—sometimes strong advice—we do not deliver party diktat in my party. I am happy to be able to say as a Liberal Democrat that nobody in this party expects us to vote for a proposition to which we conscientiously object. That is why I shall be voting for the noble Lord’s amendment unless we hear a meaningful concession from my noble friend the Minister in the course of the minutes to come.

My three questions are these. First, the Government have said that they do not intend in the foreseeable future to use powers to allow the secure college estate to be used for under-15 year-old boys and girls. What does “the foreseeable future” mean? Does it end at the time of the next general election, thereby meaning that in the unlikely event of a Conservative Government being elected, the foreseeable future will be over and they will immediately decide to allow these facilities to be used for girls and young boys? If the foreseeable future does not end at the time of the forthcoming general election, why are the Government in such a hurry to allow these facilities potentially to be used for girls and young boys?

My second substantive question is about the secure college at Glen Parva itself. My noble friend the Minister and other Ministers have been kind enough to allow Members of your Lordships’ House to attend repeated meetings in which we have pored over the plans of this establishment. As the noble Lord, Lord Ramsbotham, said, those plans are entirely unsuitable for girls and young boys. The whole design of the place is founded upon the availability of the land, not upon starting with a designer’s brief to produce a secure college. That being the case, and that being the overwhelming opinion of all experts who have looked at this proposal—other than those who are within, as far as I can see, the Conservative part of this coalition Government—why do the Government not wait to obtain permission to send girls and very young boys to a secure college until there is a plan that has been properly consulted upon on a wider basis and fulfils empirical need?

Thirdly, why do we need this now at all? We know that the Glen Parva secure college will not open until, at the earliest, 2018. I do not think that I can remember a single year in my 30 years in one or other House of Parliament in which there has not been a criminal justice or sentencing Bill—or two, or three. Why can we not wait and have primary legislation based on proper evidence in the next Parliament? I doubt whether anybody from any Front Bench in this House would deny that there will be a criminal justice Bill in the first Queen’s Speech at the end of May. What is the hurry now? It is because of what I suspect will be the answer to those questions that I shall be supporting the noble Lord, Lord Ramsbotham.

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[Lord Beecham]

My Lords, it is a measure of the importance of the matters that we are now debating, and upon which we will have to vote, that the noble Lord, Lord Pannick, made special arrangements to fly back this morning from Moscow at 5.45 am, Russian time. I do not know whether the Lord Chancellor has ever been to Moscow, but I suspect that Mr Putin’s views about holding government and other public bodies to account for the lawfulness of their decision-making would be closer to the Lord Chancellor’s than to the noble Lord’s.

After all, Mr Grayling has proclaimed that judicial review is,

“not a promotional tool for countless Left-wing campaigners”,

or, as he put it in the course of the 58 minutes that the House of Commons devoted to debating the amendments passed by your Lordships’ House:

“Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”.

He went on to claim that,

“in far too many examples, that is precisely what it has become”.—[Official Report, Commons, 1/12/14; col. 70.]

Oddly enough, the Lord Chancellor failed to provide any examples of these malign abuses of the system, the essential interests of the country that he felt were under threat or indeed the identity of the so-called abusers. On Report, the noble Lord, Lord Faulks, at least condescended to cite an example. Members may recall shuddering with horror at the revelation that the building of a supermarket in Yorkshire was delayed by all of six months due to an application for judicial review—brought, incidentally, not by a left-wing or other pressure group but by a commercial rival of the developer. I do not blame the Minister at all for relying on this underwhelmingly persuasive case. He was struggling with a grossly inadequate brief—something that I suspect from time to time he has had to deal with over the years, though perhaps in less important contexts.

The Secretary of State for Justice, moreover, whose title looks increasingly like one coined by George Orwell, gives the game away in presuming that, “perfectly lawful decision making” is what is at stake. The implication is clear: what the Government legislate is ipso facto lawful. In the fantasy world in which the courts are besieged by meddlesome litigants pursuing left-wing causes—litigants such as the Countryside Alliance and the Daily Mail—the courts are deemed to be wholly incapable of sorting out the legal wheat from the campaigning chaff. Typically, though, Mr Grayling, in the amendments that he has produced, which were never spelled out or indeed debated in the Commons, ignores the basic requirements, already enshrined in law and practice, that permission from the courts is required both to bring a case to hearing and for third parties to intervene. The Government, themselves a possible defendant in these cases, seek to restrict the exercise of judicial discretion in their own interests, and on the basis of the flimsiest evidence of the abuses that they affect to detect in the working of the system and the decisions of the courts. In the unlikely event of Mr Putin becoming aware of the Government’s approach, he would be lost in admiration.

The Opposition support the amendments from the noble Lord, Lord Pannick, Motion B1 and Amendment 102B to Clause 64, which would preserve the court’s discretion to grant judicial review where the court considers it in the public interest to do so. I invite my colleagues and others to join the noble Lord in the Content Lobby.

It would be convenient if at this stage I indicated the Opposition’s position in relation to the other amendments. We support the noble Lord’s amendment to Motion C, dealing with Clauses 65 and 66, and his amendment to Motion D, which sets out in Amendments 107A to 107E what purport to be the Government’s concession in relation to the financial position of interveners. I remind the House again that interveners must obtain permission before taking part in any application. The Government’s amendments would oblige the court to order an intervener who has been granted permission to pay costs to any other party in any one or more of four instances. The instances are: under subsection (4A)(a) of Amendment 107B, where they act as a party, although the court already has a discretion in such a case; under subsection (4A)(b), where the intervention has not provided significant assistance taken as a whole, whatever that is supposed to mean; under subsection (4A)(c), where the intervention relates to matters not necessary to resolve the issue—although, again, if they did not, permission would presumably not be granted in the first place; and under subsection (4A)(d), where the intervener has behaved “unreasonably”, whatever that means in a context in which the court already has a discretion.

The potential for mandatory awards of large costs against interveners is self-evident and self-evidently chilling. In addition, I understand that the question of financial resources and the extent of any liability would be left to the Rule Committee to determine, subject only to a negative resolution. In this context, it might be thought that this is a highly debatable procedure for dealing with such an important issue in such an important area.

I do not need to enlarge on the weight of opinion opposed to these measures in the senior judiciary, past and present, or the wide range of opinion, including that of the Joint Committee on Human Rights and the Equality and Human Rights Commission, not to mention such subversive organisations as Age UK—I declare my interest as honorary president of Newcastle Age UK —Mencap, Mind, the National Autistic Society and many other highly esteemed and reputable organisations in the voluntary sector.

I conclude with a particular appeal to Liberal Democrat Members of this House, several of whom voted for the amendments in your Lordships’ House when we last debated this matter on Report, and several of whom joined some of us—from the Cross Benches and these Benches—in the Division Lobby in the vote just taken. Sadly, very few of their colleagues voted in support of this House’s amendments in the House of Commons. If anything has distinguished the Liberal Democrats—and particularly the former Liberal Party—it has been a sincere attachment to civil liberties and the rule of law. They have been vigilant in questioning, and, from time to time, opposing, policies of different Governments that were perceived to be in conflict with those legitimate concerns. I believe that many are troubled by what this part of the Bill seeks to achieve and by the Government’s amendments. There is nothing, of course, in the coalition agreement that refers to the measures we are now debating. If ever there was a case—with a general election only six months away—for this House to exercise its role in scrutinising and amending important legislation, and in making a judgment on the merits rather than according to political calculation, this is such an example. My appeal to Liberal Democrat Members—

[Lord Carlile of Berriew]

I am grateful to the noble Lord for giving way, and I know that what he is saying is being said in a constructive spirit, but he might like to bear in mind that lectures from the Labour Party on civil liberties are not popular in the Liberal Democrats. He might possibly just leave it to our own consciences to determine how we vote on this matter.

[Lord Beecham]

It is, of course, entirely a matter of conscience for the noble Lord and others, and I would not defend everything that Labour Governments have done in this area either. That is why I referred to the stance that Members of the noble Lord’s party took on proposals made by more than one Government. It is a perfectly fair point.

I hope that, in addition to Members of those Benches, there may be other Members—from the Conservative Benches, perhaps—who will follow the example not only of some Conservative Members of Parliament who voted for this House’s amendments in the Commons, but even, much to my surprise, of the two UKIP MPs. I would not normally be encouraging people to follow where UKIP has led, but in this particular case, they were for once on the side of the angels. I hope, therefore, that this House can support the noble Lord’s amendments and, in so doing, encourage the Government to rethink their direction of travel in this very sensitive area of the rule of law and of the way in which government in this country—not just central government, but local government and other executive agencies—carries out its important responsibilities.

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[Lord Horam]

Indeed, but the point about judicial review is that it is a technical discussion about the process of law-making. Have the Government behaved illegally? Have they consulted properly? That is what judicial review is about. If you want to have an argument about HS2 it should take place in the Chamber quite openly. There are quite clearly profound differences of opinion about the process of HS2 but it is not judicial review that should be encompassing that. There should be an open debate about the merits and demerits of a particular project.

[Lord Carlile of Berriew]

Is the noble Lord really suggesting that the whole planning appeals procedure should be abandoned for government schemes? That is the clear implication behind what he said. As he said there are—I forget the adjective he used—many abuses anyway of judicial review, would he like to give us perhaps three examples of cases that have been an abuse of the process so we can have an evidence-based discussion.

[Lord Horam]

I am personally aware from my experience in this House and as the former Member of Parliament for Orpington of cases affecting Travellers and the green belt. My constituents were concerned about Travellers camping on green belt land. Ultimately, Bromley Council, which was the council in question—

[Lord Carlile of Berriew]

I want to challenge the noble Lord. Is he saying in this House that Travellers do not have the right to challenge the Government by judicial review? If so, we might as well throw away all our democratic values.

[Lord Horam]

No. What I am saying is that the judicial reviews raised by Travellers in Bromley were ultimately found to be completely meritless. They were meritless because Bromley Council, which has more Travellers than any other council in the country, had plans on how to deal with Traveller sites. Therefore, it was an argument about the nature of the problem of dealing with Travellers. It was not something that could be dealt with by judicial review. That is my point. The abuse of judicial review arises from the fact that questions of merit are being subject to judicial review simply because lobbyists and others are using judicial review as a route to object to proposals they do not like.

If I can complete the list of examples, it was not only green belt and Travellers—

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[Lord Mackay of Clashfern]

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

[Lord Carlile of Berriew]

My Lords, I have listened, of course with enormous respect, to the noble and learned Lord who has just spoken but I do not agree with him. As my noble friend Lord Marks said a few moments ago, rules already exist to deal with the problems that are legitimately identified. What I want to say, in agreement with the noble Lord, Lord Pannick, and my noble friend Lord Marks, is about who the people are who sometimes contribute to group actions and would be chilled out of them as a result of the proposed changes.

I have to go back to my period as a Member of another place, representing a geographically large but population-small rural Welsh community. From time to time in that community, issues arose relating to judicial review. For example, many people wanted to challenge the closure of small primary schools or the changes made by the Conservative Government of the time to the structure under which primary schools could be governed. There were challenges to new roads and planning decisions, which had been made on faulty procedure by the local authority.

Who are the people who contribute to these group actions? They include people with small businesses who decide that the issue matters more to them than might at first sight be apparent. They do not, however, want to open up their private business to the courts—not because there is anything wrong with their private business, but because they think it might be made public and their neighbours might know that business. Some small farmers are much more affluent than their neighbours know; others quite the opposite. The affluent ones may want to make a disproportionate contribution to a group action, because it matters to them and because their families have been central to the community in which they live for several generations. Elderly people may not want to leave quite as much as their unworthy relatives would like to receive from their estates; they may feel that there are community issues that justify their descendants perhaps paying a small price by a contribution being made to a community group action of judicial review in the public interest.

Those are just three illustrations of the types of people who will feel that they are simply not prepared to give more than a few pounds to a group action, whereas in the past they may have given several thousand. So I agree with the point that has been made eloquently by others. Before we go down this road, we need some indication from the Government—they must have some idea—at least of the proportion of costs that would fall within these provisions. Until we have that, we could not conceivably be responsible in agreeing to a proposal that would have such a serious chilling effect, not only on judicial review but on the spirits of small communities such as the one I represented.

[Lord Rooker (Lab)]

I am a complete outsider on this, but I am now confused. The examples that the noble Lord has given I can recall from my own experience, not of judicial review but of group activities—the community. The noble Lord, Lord Marks, however, said that he would buy 15% to 20%. Now, 15% is six or seven people. That is not a group or a community. Twenty per cent would be five people funding. I am now at a loss. I realise that the Government should put something forward about the level, but I am confused by the idea of lots of people contributing for the community. The noble Lord, Lord Marks, said, “I could buy 15% or 20%”. That is not a group and it is not a community. That is a small tightly knit group of motivated people. So I am confused about which way we are going on this debate.

[Lord Carlile of Berriew]

The noble Lord, Lord Rooker, has, extremely uncharacteristically, if I may say so, missed the point. I am sure that it is my fault. We are talking about group actions that may involve a significant number of people—hundreds or thousands, maybe—to which a few individuals make a large contribution. They are making that contribution, often anonymously, to ensure that the matter is capable of going to judicial review for the reasons I gave earlier. We are not talking about 20% meaning that there are only five people involved in the action. We are talking about 20% of the funding that is collected, although there may be hundreds of people involved in the action.

[Lord Berkeley of Knighton]

My Lords, the noble Lord is quite right. In my experience—which I am sorry to say is rather larger than I would like—of local communities in mid-Wales fighting, for example, wind farms, a lot of households give a few pounds, but a judicial review becomes possible because one or two people who really do wish to remain anonymous give significantly more. Many of these people have been terrified by threats of being sued for costs. So I would implore the Minister to give as much clarity as possible on this point.

Legal Aid

Lord Carlile of Berriew Excerpts

Thursday 4th December 2014 Lords Chamber

[Lord Faulks]

Litigants in person have always been a feature of the legal system. Clearly, any judge—I speak as someone who has sat as a judge—would much rather have a case in which both parties were represented by highly competent lawyers. Unfortunately, we have had to make certain cuts. The cuts, when fully implemented, will reduce the amount that we spend from £2 billion per year to £1 billion. This still makes us one of the most generous countries in the world. We are of course listening carefully to any anxieties that people have about there being injustices. We have committed to review LASPO on a period of three to five years.

[Lord Carlile of Berriew (LD)]

My Lords, reverting to the question from the noble Lord, Lord Howarth, does the Minister agree that there will be cases in which parents will be unable to be represented on financial grounds in cases in which their children will be removed from them? Does he bear in mind that there was severe criticism in one court last week of the activities of a local authority in relation to just such an issue? Does he think that it is conscionable that there should be a single case in this country in which, because of financial indigence, parents cannot be represented in such cases?

[Lord Faulks]

I am not in a position to comment on the individual case but, in a number of cases, as the noble Lord will know, the legal aid scope remains. In cases of abuse, for example, it was retained. After careful scrutiny of the provisions by this House among others, we have tried to ensure that in all sorts of cases where it is most necessary there will still be legal aid.