Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I want to speak in favour of all the amendments that have been spoken to and have my name on them—the amendment proposed by my noble friend Lord Marks and the noble Lord, Lord Beecham, from the Labour Front Bench, as well as the noble Lord, Lord Ramsbotham, who has remarkable experience of these matters. I shall not repeat everything that has been said; I want to focus on only one aspect, which was mentioned briefly by my noble friend Lord Marks—the provision of outdoor and sporting facilities for the children in this proposed Titan institution.

I have a feeling in the back of my mind that there is a Minister somewhere who has a whimsical memory of the public school that he attended and how possibly one might be able to recover these young men by putting them in the equivalent of Wellington College, which I know that the Minister attended, or Epsom College, which I attended. The difference is that at Wellington College or Epsom College the beautiful estates of those schools were created in a way that enabled every single boy to take part in sport at the same time every day. For example, in my school, more than 500 boys in those days—now 700 boys and girls—can take part in active sport and other physical activity at the same time. If what was being offered was a Titan college that had those sorts of facilities, I might begin to look on it as at least having one of the elements that would provide something particularly useful for the boys and possibly girls in it.

I think that we were all really grateful for the opportunity given to your Lordships to meet Ministers and to discuss what was proposed, because it gave us a real insight into those proposals. The Minister who was present from the Commons, Jeremy Wright, who is now the Attorney-General, as has been said, was pressed on this matter, and it was absolutely clear that there was one reason and one reason only for having this proposed secure college on the site where it is to take place—and that is that the Government already had the site and had to do something with it. There was no question of looking for a suitable site with perhaps 50 acres on which to build a secure college—and no question of selling the site that they have, possibly for housing development, to meet the Government’s other policies. They took the site—and what were we told was the provision for sporting facilities? I will be corrected if I am wrong, but my clear recollection was that we were told that there was a five-a-side football pitch, a gym and possibly another outdoor facility.

For the number of children expected to be at this proposed secure college, one five-a-side football pitch, which I take to be rather smaller than a full-sized football pitch, and one other outdoor facility is a ludicrously inadequate provision. So it fails even the site test. I have no doubt that I will be told—because instructions are being obtained as we speak, of course—that there may be a little more sporting provision. But I say to the Minister that he will have to do an awful lot better than two, or even three, five-a-side football pitches for more than 300 children at a secure college.

The only other thing I wanted to say without repeating what has been said by other noble Lords is in the form of a question, which relates to subsection (3) of the new clause proposed in Amendment 43C, tabled in my name and those of my noble friends Lord Marks, Lady Linklater and Lord Dholakia. I invite the Minister to look at that subsection, which contains paragraphs (a) to (l) as requirements or aims for the secure college. In order to shorten my noble friend’s speech, I do not ask him to tell us which of those criteria he agrees with; I ask him to tell us which he disagrees with. I would be very surprised if he disagreed with a single one. If he agrees with most of them, or even with only paragraphs (a) to (d), the result is clear that the provision that the Government are asserting is just inadequate and they ought to go back to the drawing board, sell the site and give us a meaningful plan for a secure college.

My final point is that I have listened to all the NGOs in this area, and I doubt whether there is any area of human endeavour that contains more expertise than youth justice. I have yet to find a single, sane representative—indeed, I have yet to find a representative, never mind whether they are sane or not—of one of those NGOs who approves of this proposal. Somewhere, down between the floor-boards of government, we may find the odd official—though I doubt it; it is more likely a Minister—who really believes that this proposal makes any sense at all in the reform and education of young offenders so that they can lead normal lives when they reach the age of 18. If the Minister can cite any British independent source that supports these proposals, then we really would like to hear it. I urge on my noble friend, who is a very good analyst of evidence, that when one analyses the evidence on this issue it leaves the Government with a very threadbare case.

[The Earl of Listowel (CB)]

My Lords, one of the most respected organisations in this area is the Prison Reform Trust. Its director, Juliet Lyon, was formerly a head teacher, I believe, of a school for those with emotional and behavioural difficulties. She is therefore someone who speaks with authority in this area. Listening to the noble Lord, Lord Carlile, I am reminded again how all authorities in this area seem to be very concerned about the Government’s proposals. I share the concerns that have been raised across the Committee about the Government’s proposal.

However, perhaps I may apologise to the Minister, first for being absent, due to pressing business, from the two helpful briefings that he provided for Peers. Also, earlier this afternoon, I pressed him on an earlier matter that he was not in a position to answer. I had not fully appreciated that what happened in the other place put him in a position whereby he was unable to answer my question. I apologise to him for that.

What encouraged me in principle about the Government’s proposal was that a college for the education of these vulnerable young people might be a real centre for highly qualified staff, teachers, mental health professionals and social workers. My greatest concern over the years in which I have followed these issues about residential care for vulnerable young people is that, in this country in particular, I am afraid that we place the least qualified, least experienced staff to care for our most vulnerable children with the most complex needs. I hope that the new institution will feature highly qualified teachers working hand in hand with mental health professionals. However, from what I have heard so far, there is no assurance of that.

I highlight the principle of continuity of care, which from my experience is so important for so many of these young people. My noble friend Lord Ramsbotham talked movingly about it. It is about young people having the opportunity to have an adult take an interest in them and to develop a relationship with them over time. That is key for their recovery when, in my experience of young people in care, they have been let down by the people they love most. As a result, they find it difficult to make trusting relationships. The key job of the care system—probably of this new institution—is to enable young people who have lost their ability to trust other people to make and keep relationships. That is above even the importance of education. It is very important that these young people learn to read and write, but if they cannot form relationships with other human beings their prospects are very bleak. A couple of weeks ago I spoke to an academic who had been in care. He graduated from a young offender institution with no qualifications. He now works on policy around young people in care. He said to me, as a highly qualified care leaver, that the most important thing is to meet young people’s emotional needs.

The briefing states that three-quarters of young people will have grown up without the involvement of their father. Perhaps it is worth mentioning, as an aside, that more than a fifth of children in this country are growing up without one or other parent in their family. The OECD expects that figure to grow considerably: it will move to a third of young people growing up without one or other parent in the family—probably a father—within the next 10 to 20 years. At the moment, that figure stands at over a quarter in the United States. However, according to the OECD we are going to overtake the United States in the next 10 to 20 years. This is a matter to which we should give serious consideration.

I am very concerned that these young people should have continuity of relationships and of care. For instance, it is very important that they have a key worker within the setting who can develop a relationship with them over time. The issue of ratios was raised by my noble friend Lord Ramsbotham. In young offender institutions it is very hard for a prison officer to have that kind of relationship because he is responsible for so many young people. Although it is required, it is not worth the paper it is written on.

I return to my experience of the care system. I was involved, in a small way, with a report that was produced by the MP Ann Coffey, the chair of the all-party group for missing persons. The report was on children missing from care, particularly in the context of young women being groomed by outsiders. The Government gave a very positive response to it and produced three working groups. As a result of that we now have much stronger checks on local authorities placing their young people out of authority care. We found that far too many children in local authority care were being placed many miles away from their local authorities. The Government recognised in principle that it is best to keep them as near as home as possible, although there may be exceptional circumstances. It therefore concerns me that we will have one institution covering a third of the children in the custodial estate in Leicestershire. Many of them will be so far away from their families and the possible communities they return to that it will be very hard for them to resettle.

Visiting a secure training centre a while back, I was very impressed by the quality of teaching provided to the young people. I watched a class and spoke to the teacher, who said, “We really can give a good service here, but when they walk out of here it is as if they’re walking off a cliff edge”. Therefore, I share the concern expressed by many that this new institution risks producing a very severe cliff edge of services. The previous chair of the Youth Justice Board, Frances Done, who was very well respected, did great work towards the end of her tenure in developing regional consortia with chief executives and directors of local services to ensure that there was a seamless move back into the community at the end of custody.

Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Cormack (Con)]

Why have a vote at all? We are in Committee and the Bill will then be on Report. At that stage, the Government can tell us what sensible amendments they wish to move. Some of us have been whipped to come this afternoon—and I always treat Whips with great discernment—but what is the point in voting this afternoon?

[Lord Carlile of Berriew (LD)]

Can my noble friend elucidate for those Liberal Democrats who are unaccustomed to taking part in plots organised by the Chief Whip of the Liberal Democrats—I claim to be one of them—and answer the question of the noble Lord, Lord Reid? Why is this issue not better dealt with by sentencing guidelines, which can be changed from time to time to meet the circumstances that the courts have to face on a regular basis, rather than by using this clumsy statutory provision, which is not in a fit form to enact in any event?

[Lord Harris of Haringey (Lab)]

My Lords, I have listened to this debate for the last hour and a half and was almost looking forward to the Minister’s response. Some serious issues have been raised during the course of this debate which deserve an answer on behalf of the Government. As I understand the position—and I have got more rather than less confused as the afternoon has worn on—we are about to have put before us the Motion than the clause should stand part of the Bill.

If we were to agree with the noble Lord, Lord Marks, we would presumably vote not content. Presumably, too, the Government and possibly the Opposition have whipped all the noble Lords here to vote content—that we want the clause. Therefore, before we vote on the matter, it is really important that some of the issues that have been raised are addressed by your Lordships’ House with the authority of the Government saying what their responses are.

For example, one point that exercises me is the question of why it is thought that this might have a deterrent effect on young boys who act largely on impulse. I appreciate that the Government do not want—or the Minister does not, on behalf of whatever entity he is speaking—to express a firm view. However, he could share with the House the research work that no doubt different government departments have conducted on what constitutes a deterrent effect on young men and whether the clause, as drafted, conceivably delivers such an effect.

Assisted Dying Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, the noble and learned Lord, Lord Falconer, has initiated an extraordinary debate. Coming in to bat at number 117, as I think it is now, I am able to reflect a little on that debate.

We have heard some marvellous speeches, analytical and deeply personal in equal measure. The noble Lord, Lord Mitchell, has just given a moving description of what happened in his family. Earlier, we heard an extremely moving speech from the noble Baroness, Lady Symons of Vernham Dean. Those are two stories that I am sure we will all remember as eventually we go into Committee on this Bill, and I am sure will colour our judgment, whichever side we happen to be on.

However, during this debate there has been running what I submit to your Lordships is an ethical and philosophical fallacy about the primacy of choice. The noble Baroness, Lady Kennedy, referred to this earlier, and I agree with her carefully articulated analysis. I challenge the presumption of the primacy of choice. We are denied many choices in life in the greater public interest. For example, one of the choices that we are denied is that of killing or even injuring those who attack and injure us. If we do, we may have a defence in court but it is very different from a choice. I suggest that the slippery slope that we are really discussing here is more in the context of what legitimate choice is than in this proposed legislation. Exactly the same kinds of arguments about choice are deployed in the United States of America to justify the availability of guns. At the bottom of that slippery slope we know lie the bodies of the many innocent victims. As this Bill continues in this House, we should continue to debate that philosophical question.

How big a question does the Bill really ask? Earlier in the debate, the noble Lord, Lord Joffe, said that the Bill was not a radical innovation in the law. With great respect to the noble Lord, he could not be more wrong. Indeed, a few minutes later, the noble Lord, Lord Brennan, reminded us that this Bill dismantled the Hippocratic oath. As the Guardian’s editorial put it this morning, the Bill attempts to “redraw the moral landscape”.

I therefore ask the noble and learned Lord, before he sits down at the end of the debate, to answer some questions for which we need the answers if we are to be able to judge fairly how the Bill should proceed. They include: why has he not redrafted it in the light of the recent Supreme Court judgment so that the arbitration of these cases would not be by two random and favourably inclined doctors but through the courts? As the noble and learned Lord knows, the courts are very accustomed to these kinds of decision, as they are in vegetative syndrome cases and in cases relating to Jehovah’s Witnesses’ refusal to have operations, on which the courts decide on a regular basis. I urge on the noble and learned Lord that that provides a much better template than two doctors. On this aspect, I agree completely with the noble Baroness, Lady Neuberger.

Why has the noble and learned Lord provided in the Bill for only the possibility of a ministerial code of practice, rather than the certainty? Is it a mere piece of text, or has he obtained from Ministers their acceptance that a code of practice would be promulgated? When will we see an example of the draft code of practice, which we expect to examine alongside the Bill? Why does he not insist in the Bill on doctors who actually know the patient, so that we avoid what has been described, rather extravagantly, as the Shipman problem? Would he please answer the question of the noble Baroness, Lady Kennedy, about whether there will be inquests and inquiries after deaths, as he proposes should take place? These and many other questions require answers.

To sum up, I quote the Guardian leader again:

“Reshaping the moral landscape is no alternative to cherishing life and the living”.

Certainly I shall approach the Committee stage in the spirit of cherishing life and the living.

Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Woolf. If ever a wolf showed that he was not a sheep but how to bite with gentle ferocity it was tonight in this House.

My verdict on the Bill is that there is much to support but possibly even more to amend. It is a matter of concern that a Bill has arrived from the other place in such poor order requiring so much amendment. I support in general terms the powerful and excellent speech of my noble friend Lord Marks of Henley-on-Thames and the persuasive remarks of the noble Lord, Lord Pannick. I want to concentrate on two aspects of the Bill that have caused widespread concern. My first point relates to the Bill’s provision for secure colleges, which has been widely discussed, but I want to pick up on a couple of specifics.

I applaud the reduction in the number of minors held in custody in recent times and the work of the Youth Justice Board under the chairmanship of Frances Done. I look forward to an equally fruitful period under my noble friend Lord McNally, whom I am delighted to see in his place and with whom I, along with many others, have already had discussions. He is showing great enthusiasm and a huge appetite to learn about his new post.

My observation during my period as president of the Howard League for Penal Reform persuaded me beyond any doubt about the important role of education within the custodial environment. I will never forget the maths certificates, all at highest grades, that I saw on the wall of a 17 year-old prisoner. When he informed me of his wish to be a maths teacher when he was released and able, as he hoped, to go to university, I asked him, “How was your maths when you were at school outside this place?”. His reply was, “I never went to school, sir”. He had been the beneficiary of excellent education, not on a large scale, but in a targeted way, in a custodial environment where it just so happened that the education was extremely good, at least for him. I agree entirely with my noble friend Lady Linklater that small institutions are best equipped to deal with the multiple needs of young men such as the one to whom I have referred. Indeed, I would also cite the experience and the excellent successes of the now sadly defunct Peper Harow Foundation, which achieved much in the same context and I know is well remembered by a number of Members of this House. I hope that the young man to whom I have referred has now found his true vocation, which was started through good education in custody, and has gone on to university and become a maths teacher.

I absolutely agree with the Secretary of State and my noble friend the Minister this evening that there should be a strong focus on education in custody. However, the cohort of children in custody has complex issues and needs. These were well described by the noble Lord, Lord Ponsonby, and I do not propose to repeat what he said. But what is proposed in the Bill needs to be examined in relation to two particular issues. The first is the size of the institution and above all the fracture from home that such a large institution is likely to cause, by definition, by bringing people possibly hundreds of miles from their homes. The second is the provision for physical restraint as it is described for good order and discipline.

The Government’s commitment to a large institution is, in reality—this is clear from the papers—an economic decision, not one related to the needs of the children in custody. Real concerns have been expressed to us all by many experts about bullying, safety and, above all, resettlement from a large institution distant from home. For this group of offenders, one size simply does not fit all.

Restraint is an extremely important issue, which is dealt with with extraordinary superficiality in the Bill. In 2006, with others, I produced a report for the Howard League on the use of physical restraint on children in custody. It was quite evident that the rules varied from institution to institution and that the techniques for the use of restraint in some places were violent and relied on pain compliance and in others were quite different. What was absolutely clear was that restraint was very rarely needed. In the best institutions, compliance could be obtained by de-escalation techniques, as I think they are generally called—in other words, sitting down and taking the time to talk to the young person concerned about why he or she had kicked off and how the problems could be resolved. That technique leads to a constructive outcome.

The use of pain compliant violence and other forms of physical restraint leads to resentment and trouble in custodial institutions. There was clear evidence when we were doing the Howard League report that kicking off and being restrained was almost a badge of office for young people. It is asking for trouble to allow private sector institutions to form their own rules for the use of restraint. It is just too vague to be credible and it will lead to numerous cases in the courts for damages and, if it is possible, some judicial reviews.

Clause 67, too, has been addressed by a number of Members of your Lordships’ House. It deals with the proposal to make interveners liable for costs arising from their part in public interest legal challenges. I agree entirely with the noble Lord, Lord Pannick, that this proposal is not necessary. The courts already have adequate powers to refuse an application to intervene or penalise inappropriate behaviour by interveners through costs actions. It rarely happens. I have not been able to find a case in which it did happen, because on the whole interventions are constructive. Indeed, the proposal is counterproductive. It will result in deterring parties from intervening, depriving the High Court and the Court of Appeal of important legal and factual information that leads to the right decision. In some of these public interest cases, it is not a game. These are important cases and what matters is doing right to citizens and of course to the Government.

The role of interveners has been praised on many occasions. The noble and learned Baroness, Lady Hale, said in 2013 that the more difficult the issue,

“the more help we need to try to get the right answer”.

She described the potential for interventions to be “enormously helpful”. The noble and learned Lord, Lord Hoffmann, in the case of E v Chief Constable of the Royal Ulster Constabulary in 2008, explained that permission to intervene is given,

“in the expectation that their”—

the intervener’s—

“fund of knowledge or particular point of view will enable them to provide … a more rounded picture than it would otherwise obtain”.

Interveners add value to the court. They provide the sort of analysis that sometimes is not readily available to the party, such as international comparison. We should remember that it is not only NGOs that intervene; government departments intervene frequently in judicial review cases, principally with the good purpose of protecting the legislation and the policy for which they are responsible. For example, in the case of Yemshaw v Hounslow London Borough Council in 2011, a case that went to the Supreme Court, the Secretary of State for Communities and Local Government intervened in support of a wider definition of domestic violence.

Clause 67 makes sweeping changes to interventions in judicial review cases. It appears to require the court to order that an intervener—and this is incomprehensible to me—must pay the other parties’ costs arising from the intervention. Where another party applies for such an award to be made, the court will have discretion to depart from this rule only in exceptional circumstances. That is absurd, especially when you consider that many interventions are made in writing or by short submissions to the court. The inevitable consequence of this is that charitable and not-for-profit organisations will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?

The senior judiciary, of which we have some very distinguished representatives in this House, some of whom have spoken tonight, has spoken out this year in relation to these proposals. It said:

“The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court”.

There is no need for this new proposal. I agree entirely with the noble and learned Lord, Lord Woolf, that the Government should take this proposal back to the drawing board. The court already has wide powers to penalise parties, including interveners, who act irresponsibly or to award costs against interveners who play a leading role. There is no problem. The Government are creating a problem when it does not exist and does not require a solution. In your Lordships’ House, we can ensure that that consequence does not follow.

[Lord Ramsbotham (CB)]

My Lords, I begin by assuring the noble Lord, Lord Carlile, that Peper Harow, in the name of Childhood First, is alive and well. Indeed, my noble and learned friends Lord Woolf and Lady Butler-Sloss and I have the honour and pleasure of being patrons of the organisation.

[Lord Carlile of Berriew]

I apologise to the noble Lord. I remember it being burnt down and have not kept up with developments since.

[Lord Ramsbotham]

The house itself was burnt down, but the organisation is functioning in smaller houses, which is much more effective than having one large house.

I propose to speak only about Part 2 of what was already a vast Bill before other clauses were added during its passage through the other place. That is not to say that I do not have concerns about Clauses 1 to 5, which will add significantly to the work of the already overstretched Parole Board, about Clause 6, which appears to be a badly rushed measure on which the Minister in the other place was unable to provide information, either about its projected cost or its alleged benefits, or about Clauses 7 and 8, about which there must be doubt because the impact assessment seems to ignore the inevitable number of breaches of supervision by short-term prisoners, discussed many times during the passage of the Offender Rehabilitation Bill. I leave Part 4 to my noble and learned friends with great confidence, enhanced by their contributions to today’s debate.

My concerns about Part 2 began with the Government’s published response to the consultation on Transforming Youth Custody, in which I was disturbed both by the lack of detail about the proposed secure college and the phrase in the final paragraph of the ministerial foreword, signed by the Secretary of State and the Deputy Prime Minister,

“we are committed to delivering at pace”.

That suggests that this is a pet project of the Secretary of State, which he is determined to push through as quickly as possible whatever anyone says. My concerns were further fuelled by three things that the Secretary of State said at Third Reading of the Bill in the other place. First, he said:

“We are not a Government who legislate without taking into account the views of Parliament”.

That claims sounds a little hollow when I recall the deliberate denial of parliamentary scrutiny of the reordering of probation. Secondly, he said that,

“the rules that underpin the secure college provisions will be subject to public consultation. They were published during the passage of the Bill to benefit from the wealth of expertise within the youth justice sector”.

Bearing in mind their importance, as mentioned by the Minister, it is essential that this House sees and scrutinises those rules. I therefore ask the Minister why they have not been available to the House before we start work on the Bill. Thirdly, he said:

“I urge the Opposition to think again before they play politics with the future of young people”. [Official Report, Commons, 17/6/14; cols. 1070-71.]

Like many other noble Lords, I welcome the Government’s stated ambition of creating secure educational establishments where core learning skills, vocational training and life skills will be the central pillars of a regime focused on educating and rehabilitating young offenders. I also welcome the acceptance of the measures introduced by the Children and Families Act for the treatment of those with special educational needs. As an independent Cross-Bencher, my opposition to this proposal is nothing to do with party politics, but entirely based on my practical experience as Chief Inspector of Prisons, when I inspected every young offender institution, and many secure training centres and secure children’s homes, in England and Wales. I found good establishments and bad establishments. What united the good ones was that their governors were trying desperately to achieve what the Government state to be their ambition, while regretting that their attempts were hampered by a lack of resources, including time—the average length of sentence being a bare 78 days. My inspection experiences and my subsequent involvement with the youth justice system lead me totally to disbelieve the maths of the Government’s claims and to ask the Minister: first, whether there are any maths; secondly, on what they are based; and thirdly, why they have not been made available for us to scrutinise.

Having seen many wise, dedicated and experienced governors try and fail to squeeze more out of their pint pots, I have to admit that what I dislike most about this proposal is the presumption, based on no evidence, that private sector companies working for profit can come in and do what experienced professionals have failed to achieve, in larger establishments, with larger catchment areas and at less cost. Such a presumption suggests that no one has worked out the cost of essential custodial educational staff/offender ratios, because, if they had, they would have realised that the cost of ensuring there are sufficient skilled custodial staff is bound to have an impact on the provision of purposeful activity and vice versa. The risks that private sector companies take with staff numbers in adult prisons are simply not acceptable when they are responsible for safeguarding this vulnerable age group.

The proposal also confirms that pace has encouraged the rejection of the unanimous advice from experts that small establishments are far better and safer if anything is to be achieved with this particular group, and for the need to preserve the principles of maintaining closeness to home, development of good family contact and links to the local authorities of children in care. If pace means commissioning £85 million of limited funding on an unsubstantiated proposal before it has been scrutinised and approved by Parliament, without knowing whether it is possible to implement what is proposed, it is better described as playing with the future of young people.

The Minister said that the commission to build would not be confirmed unless and until the Bill receives Royal Assent. I submit that it is bordering on contempt of Parliament for the Government to announce the award of the £85 million pathfinder contract to Wates to build what they describe as a purpose-built 320-place secure college on a site at Glen Parva in the East Midlands before the Bill has completed its passage through Parliament and without any idea about the requirements of the educational contract whose delivery the build is meant to facilitate. Far from it being designed to satisfy secure college aspirations, Wates has been commissioned to build what was agreed for a young offender institution on the same site in 2009 but subsequently not built. The Minister’s mention of Titan prisons reminded me that it was Wates that told me of Jack Straw’s infamous direction that they were required “to hold as many people as possible as cheaply as possible”. I hope that the same has not been directed by the Secretary of State in connection with the proposed secure college.

Other noble Lords have mentioned paragraph 10 of Schedule 6, which allows staff to “use reasonable force” to ensure “good order and discipline”. I fail to see why this paragraph is necessary, because an independent review of restraint in juvenile secure settings chaired by an eminent adolescent psychiatrist produced admirably clear minimum rules that were accepted and published by the previous Secretary of State. Presumably they are not tough enough for Mr Grayling. I could go on but I will reserve my fire for Committee.

Before that I would like to make an appeal to the Secretary of State through the Minister. Bearing in mind that, thanks to the welcome reduction in numbers, largely achieved by the efforts of the Youth Justice Board, the nature of the child prisoner population has changed from its far wider representation into being a toxic mix of the most violent, troubled and damaged. That change gives him a perfectly valid reason for dropping his proposal and putting it into the aspirational basket. All would not be lost because he could then task the newly appointed director of young offenders, if paragraph 20 of the Government’s response to the consultation is to be believed, to conduct a deliberate and costed examination of what improvement and change was possible with the available resources, including quantifiable evidence to support his claim that secure colleges will reduce reoffending rates and show how such a reduction will be achieved in practice. Meanwhile, in the absence of proof, it would be irresponsible of the Government to ask this House to rubber stamp this proposal and responsible of them to prove that I am wrong by producing the evidence that justifies the pace with which they are pursuing their proposal with unsubstantiated ambition.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Carlile of Berriew Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I very much support the excellent speech made by the noble Lord, Lord Pannick. I hasten to say that I do not have any expertise in judicial review or in the work of the administrative court, save that I sat on the Court of Appeal, but the legal aid amendments raise constitutional issues of some importance.

I wish to say something about the position of the Lord Chancellor, following on from what was said by the noble Lord, Lord Lester. The Lord Chancellor is head of the Ministry of Justice and, more importantly, has for centuries been the conscience of the monarch and continues to be so. I wonder whether this Lord Chancellor has ever heard of that. Successive Lord Chancellors have had to juggle two positions, as a member of the Cabinet of the Prime Minister of the day and as head of the administration of justice. These two positions inevitably create a conflict of interest, which successive Lord Chancellors have generally managed well.

We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations. I have had a great admiration for successive Lord Chancellors—and I suppose I must declare an interest as the sister of Lord Havers—and it saddens me to have to say this. Rather like the noble Lord, Lord Lester, I now regret the clause in the Constitutional Reform Act 2005 that permitted a non-lawyer to become Lord Chancellor.

The administrative court has an increasingly important role in society. It is a crucial part of the checks and balances between the Government of the day and members of the public who have not had a fair deal from a government department or local government. The court holds the Government or local government to account for misuse of powers, and ensures access to justice, accountability and good administration. The effect of these regulations is to reduce dramatically the opportunity of a member of the public to challenge a decision of government, even when that decision is patently unfair. I am talking not about pressure groups, but about individuals. If no legal aid is paid until permission is given then most of the work will have already been done, and in many cases the problem will have been sorted by the lawyers acting for the applicant.

In some of the lobbying information that I have received I was told of two cases where a lawyer sorted it long before it had to go to the judge, by giving the particular government department relevant information that the government officials had failed to look at or had not received from people who are unable properly to put their own cases forward. The absence of legal aid until the moment of the grant of permission will exclude all the cases settled and the management of many problems before the case comes to the judge. It will be a lottery, where many lawyers will not accept to do the work with the hope but not the expectation of payment, especially when the outcome may not require taking the case to the permission stage. The making of the application may itself be sufficient. This is manifestly unfair to the ordinary member of the public. In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.

It is very convenient for the Government to reduce the opportunity to challenge decisions made by their departments, which in itself will create a greater and greater inequality for members of the public. It makes many government decisions immune to scrutiny. That cannot be right. I recognise, of course, the efforts of this Government to cut expenditure and I applaud them for the many ways in which they have done so. But this attack on access to the administrative court is a step far too far. There must be some other way to deal with inappropriate applications. The suggestion of the noble Lord, Lord Pannick, that it should be left to the judiciary seems to be a sensible compromise. I hope that the Government will think again.

[Lord Carlile of Berriew (LD)]

I support the Motion of Regret brought by the noble Lord, Lord Pannick. In my view, the Government have brought a large blunt instrument down on a subtle and fragile part of legal tissue.

I received a briefing this afternoon from a government source in this part of the coalition who told me that it was estimated there would be a saving of between £1 million and £3 million through the provisions that we are debating. That is just about the least robust financial assessment we have ever heard in this House. If the Opposition had put it forward, I can imagine the Government’s excoriation of it.

In saying what I say, I hope that I will be forgiven for not dwelling on the interesting subject of the epidemiology of the role of Lord Chancellor. I intend to concentrate on more practical things concerning legal aid. I do so from the position of someone who still sits for a few days a year as a part-time judge in the Administrative Court dealing with exactly these cases. I thought it might inform the debate if I told your Lordships something about that role.

On a typical non-court sitting day—that is, a sitting day but in chambers—the Administrative Court judge receives a trolley containing about 12 judicial review cases. Some but by no means all—now, at least—are asylum and immigration cases. Others are on a much broader range of issues across the field of judicial review of administrative action by central and local government, the Parole Board and other public bodies. If we take those dozen cases, some—on a bad day, a majority—are wholly without merit. That phrase was adverted to by the noble Lord, Lord Pannick. I agree with the Government that legal aid should not be available or recoverable for cases that are wholly without merit. The Bar Council has taken that realistic view, too.

Some claims are most certainly brought with very little thought, no understanding of the law and just as a delaying tactic. However, some of those dozen cases, on every single sitting day, have merit. The trick for the judge is spotting them. The question here is whether the filter should be the Government, either by statutory interdiction or via the Legal Aid Agency, or the judge. I support the view of the noble Lord, Lord Pannick, that the “wholly without merit” test, applied by the judge, is by far the fairest way of dealing with these cases. It is also transparently fair. It is fair in the minds of the public. It is free of the accusation that government or politicians have taken hold of judicial review for illegitimate, political purposes.

Assisted Suicide

Lord Carlile of Berriew Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I thank the noble Baroness, Lady Jay, for instigating this debate and for the way in which she introduced it. I am going to say something that I did not intend to say, because I have been so shocked by what the noble and learned Lord, Lord Falconer, has just said. He has demonstrated a scant and incomplete understanding of what the Director of Public Prosecutions does in these cases. What actually happened here is that the then Director of Public Prosecutions, Sir Keir Starmer, as I understand it determined these guidelines personally and with enormous care as a result of more than 5,000 representations. There is no case that shows that the guidelines have not worked well. The idea that they are not led by compassion is completely unrealistic. The Crown Prosecution Service considers every case on the basis of all the evidence placed before it. Everybody who is interviewed under caution in relation to such a case has the opportunity to tell their story in full, and is able to make extraneous representations—for example, through their solicitors. As a result, the former DPP and the present DPP consider every case on its facts, and apply the guidelines one by one. If there is an issue of compassion, then it is applied to that case.

The noble and learned Lord should not forget—indeed, the House should not forget—that there is a very important constitutional protection here, and that is the power of the Attorney-General or the DPP, as is appropriate in any given case, not to prosecute. That is exactly what is applied here compassionately in an interpretation of the law that works well and should not be changed.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Lord Carlile of Berriew Excerpts

Wednesday 29th January 2014 Lords Chamber

The article detailed all these cases of alleged sexual or physical abuse from the late 1960s to the mid-1980s. I have no wish to comment on the allegations, or, indeed, to consider how the regulations in question here could bite in that situation. However, the article highlights—if, indeed, highlighting is required—just how vulnerable prisoners are, particularly young prisoners, and therefore how essential it is that they should have full and proper access to justice rather than be discriminated against as prisoners under the legal aid scheme. These are mischievous and misguided regulations, and the noble Lord, Lord Pannick, is right to regret them.

[Lord Carlile of Berriew (LD)]

My Lords, given the current clamour for repentance in some quarters, it is a real pleasure to follow a sinner who hath repented. The noble and learned Lord, Lord Brown, makes an extremely powerful point in reminding us that these are cases in which the merits test has been passed. Therefore, the Government are deliberately excluding from access to litigation people who have been advised that they have merit in their case. That is a matter of real concern.

I, too, applaud the noble Lord, Lord Pannick, for moving this Motion of Regret—the third Motion of Regret, or similar, in a run of these legal aid regulations. This fact, in my view, should cause Ministers and the Government Front Bench real concern. There is more or less united opposition to these regulations among the informed. I would have thought that that evidence was as good as one could wish for.

I also want to pick up a point on mental health made by the noble and learned Baroness, with all her experience of the judiciary. It is often a matter of pure chance whether a child or adult with a serious multiple mental health history ends up in prison or in hospital. It may depend on where they were standing when a florid episode took place, whether there was a sympathetic or an unsympathetic police officer present or whether or not their family was there to protect them. It is purely because of a small event that one person may now be in a hospital, with all the care that a hospital provides, and the capacity to obtain legal aid for important litigation that may establish the course of the rest of their lives, and another may be in prison, where, apparently, they are to be deprived of access to that litigation. That seems to me profoundly unjust.

The third and final point I will mention—trying not to take up too much of your Lordships’ time this evening—relates to children and young people and the work of the Howard League for Penal Reform, of which I was president but am no longer. On 13 December last, the Joint Committee on Human Rights stated that it was “disappointed” that the Government had pursued the removal of matters from legal aid relating to young people and, in particular, resettlement cases. The committee said:

“The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case”.

There are, of course, some very good lawyers in this House, but there is not a lawyer in this House who would not be challenged by some of these cases. The Howard League has a legal team that has helped literally hundreds of children make fresh starts and secure long-term support on statutory funding. The result has often been to allow them to be released safely, having served the shortest appropriate time in prison. They have often been able to move on not just to lives which are free of crime but to lives which are positive in a much broader sense.

In turn, this has led not only to justice on their part but has saved the taxpayer a huge amount of money. It is extremely expensive keeping young people locked up. Therefore, I say to my noble friend the Minister that I doubt very much that any robust cost-benefit analysis has been done on removing legal aid from children in custody rather than allowing them the legal aid which the expert legal team at the Howard League—and, of course, elsewhere—has utilised to bring benefit to those children’s lives.

[Lord Goldsmith (Lab)]

My Lords, it is a privilege to follow the statements that have been made by so many of your Lordships universally condemning these regulations and identifying the specifics of why they are wrong in principle and wrong in fact.

I have not been someone who has objected to any legal aid cut. I have been concerned about some but, as a member of a Government who themselves had to look at legal aid issues, that was not the concern. However, what particularly concerns me about these regulations is the point that the noble Lord, Lord Pannick, made early in his contribution when he referred to the reasons given by the Secretary of State, the Lord Chancellor, for making this change—said to be ideological.

While there may be that ideology so far as the Lord Chancellor is concerned, noble and learned Lords have already made it plain why it is legally wrong: because prisoners have rights. Therefore, if the justification is that, ideologically, they should not have rights, he is saying that they should be in the same position as the people in the black holes of Guantanamo.

I am still shocked by the piece that the Lord Chancellor wrote in the Daily Mail on 11 September 2013, in which he described judicial review, not once but twice, as,

“a promotional tool for countless Left-wing campaigners”.

That is completely untrue, of course. I do not think that the Daily Mail would be regarded as a left-wing campaigner, yet it used judicial review to challenge the Leveson inquiry. Much as I admire it, I do not think that the Countryside Alliance, when it brought a judicial review against hunting, would have regarded itself as a left-wing campaigner.

It is deeply worrying that that is the ideology that underlies these changes. It would be deeply worrying if it came from anybody, but coming from a Lord Chancellor—a Secretary of State for Justice—it is a matter of the gravest regret, which is why I am very happy to support the noble Lord, Lord Pannick. It is wrong for these reasons. It is wrong because legal aid is about justice, not about ideology. It should be about ensuring that people can vindicate their rights where properly those rights deserve to be vindicated. Therefore, the Lord Chancellor—the Secretary of State—is ideologically unsound and also legally wrong.

This measure is, I regret to say, shabby, and a political and populist move which does no credit at all to a Government. Equally, it does no good, as noble and learned Lords and noble Lords have pointed out, in terms of cutting the budget. I very much hope that the noble Lord—and I, for one, welcome him to his place on the ministerial Bench—will do his best to make sure that that point is driven home within the Ministry of Justice and that the Secretary of State recognises eventually that this sort of move, which he regards as ideological, is in fact utterly to be regretted.

Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Lord Carlile of Berriew Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.

I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,

The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.

For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.

There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.

Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.

[Lord Carlile of Berriew (LD)]

My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.

The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.

A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.

As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.

Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.

What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.

[Baroness Lister of Burtersett (Lab)]

My Lords, as a member of the Joint Committee on Human Rights and, I suspect, the only non-lawyer to take part in this debate, I thank my noble friend for moving the Motion of Regret. I shall make a couple of points based on the JCHR’s report—with which the Minister, as a former colleague on that committee, will of course be very familiar,. The Government’s gain is the JCHR’s loss. I shall spare him any further blushes. As has already been said, the Government estimate that about £1 million will be saved as a result of these changes. Such a small, or as the Minister called it, modest sum in public expenditure terms comes well within the margin of error, and indeed the JCHR questions the accuracy of this estimate. My noble friend suggests that there could be no saving at all.

Whatever the savings actually are, clearly they are very modest and we have to ask whether it is proportionate to put at risk the rights of access to the courts where human rights issues may well be at stake, as underlined by the Bar Council in its evidence to the JCHR. It said that of all the legal aid measures,

“this one is … likely to have the most immediate and adverse effect on human rights”.

It gave as examples the prospect of loss of one’s home or of one’s children being taken into the care system. These are very fundamental issues for ordinary citizens. ILPA has also raised its concerns to your Lordships, particularly with regard to asylum and immigration cases. It raised particular concerns about separated refugee children, and I would welcome an assurance from the Minister that that group will be protected.

Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Lord Carlile of Berriew Excerpts

Wednesday 11th December 2013 Lords Chamber

Moved by

[Lord Carlile of Berriew]

That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 1 November, be annulled. (SI 2013/2804)

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee.

[Lord Carlile of Berriew (LD)]

My Lords, in speaking to the two Motions standing in my name on the Order Paper, I should start by saying that I do so with sadness and regret. The fact that we are having this debate on annulment Motions at all is a symptom of the breakdown in trust between barristers in criminal practice and the Lord Chancellor’s Department. I have been at the Bar for 43 years now, with 42 years in practice. Over that period there have been pinch points, there have been negotiations about costs, but they have always been resolved by constructive engagement. We are now in a situation in which, for the first time in my time at the Bar, barristers are intent on withdrawing their labour, and they are at loggerheads with a Government who a great many of them have supported over the years. That is a sad state of affairs.

I declare my interest at the outset. I am a barrister who has conducted several very high cost cases, the category on which I will focus. I was but am no longer involved in a still current case which is not affected by the changes. I am very grateful to my noble friend the Minister for meeting me, with two officials present, on 26 November. I thought the meeting was useful and possibly constructive for the future. I hope he shares that view.

What are VHCCs? They are called “very high cost cases” but that is somewhat pejorative. In truth, the letters could also stand for “very high complexity cases”. They are few in number and among the most complex cases that come before any court, criminal or civil, in terms of the law that is involved and the facts that they engage. All, by definition, have to be expected to last more than 60 court days—they are massive cases. Substantial prison sentences may ensue for the people convicted, and usually those convicted in this class of case are not career criminals but people of previous good character.

A current case of which I am aware involves nine parties, including the prosecution; 20 counsel, including nine QCs; and between 5 million and 8 million pages of documents disclosed. One might ask, “What all those lawyers are doing, trying to read between 5 million and 8 million pages for the defence. Are they just making work for themselves?”. No, not at all. “Disclosed” in this context means that the documents have been described by the prosecution as either materially undermining the prosecution case or materially assisting the defence case; there is a clear obligation on the defence to examine those documents as best as it can.

These cases are every bit as complex as some of the legendary civil cases involving Russian oligarchs and the like about which we read, and the huge commercial disputes that some of the distinguished noble and learned Lords now sitting in the Chamber were involved in in practice and as judges. They demand the same legal and analytical skills as the most difficult civil cases. There is an added element. All these cases are heard by juries; so the hugely complex material has to be translated, as it were—transposed—into a situation where it can be understood by a jury.

Some defendants are wealthy and would like to pay for their own defences, but they are not allowed to by the state. For the most part they cannot use their assets to pay for their defences because they have been seized by the state. They are the unwilling people who have been thrown on to legal aid and basically obliged to take it or defend themselves. We have had arguments in this House in the past about whether these assets should be unfrozen under careful scrutiny and management to allow them to be used to pay for their defences, but for a completely strange reason the Government are not prepared to allow this to happen. I suggest to your Lordships that that is a stubborn, unreasonable and unrealistic approach.

As I have said, these defendants are thrown unwillingly on to legal aid representation, like it or not, and the public pay. Theoretically, if they are convicted some of the costs can be recovered, but I would like to hear from my noble friend what proportion of the defence costs have been recovered in these cases. Defence costs are notoriously difficult to recover. There are a legion of anecdotes, mostly true, about how the families of those convicted can sit quietly on the assets that have been frozen and live, for example, in expensive family homes for years. Recovery is very unsuccessful.

There seems to be an implication that the Bar is being greedy, setting fees that are totally unrealistic, but I remind your Lordships and particularly my noble friend that these fees have never been set by the Bar or by any other advocate. They have always been set by the Government of the time, and, until now, after consultation, discussion and negotiation, which is a process founded on reason.

Unfortunately VHCCs have developed a substantial bureaucracy which is extremely frustrating to those of us who have had to conduct them. They involve case managers who are civil servants. I have occasionally suggested to these case managers that they are “valued members of the defence team”, a phrase that I have repeated on a few occasions in messages to them. Even that flattery has failed to secure a single attendance by a case manager at a conference in the case, or a single attendance at court when there was a critical incident occurring in a preparatory hearing or the trial. This is mere bureaucracy, which adds totally unnecessarily to the cost of these cases, the fees for which could be assessed by the very people who are sitting in the court—as used to be the case—the associates or court clerks, who saw what was going on and were able to see how much work each advocate had done in the case. The lazy got less than the assiduous.

--- Later in debate ---

The policy implemented by these instruments was the subject of public consultation for eight weeks. Transforming Legal Aid: Delivering a More Credible and Efficient System set out a package of reforms intended to ensure a sustainable, efficient and credible legal aid system. Around 16,000 responses were received from representative bodies, practitioner and other organisations, individual members of the judiciary—

[Lord Carlile of Berriew]

My Lords—

[Lord McNally]

It is very late and noble Lords have all had a very good time.

[Lord Carlile of Berriew]

It is very late, but this is an important debate, as has been made clear. I have one question to ask. If my noble friend thought it right that there should be an extensive consultation on the generality of legal aid, why was there no consultation on VHCC cases?

[Lord McNally]

This is the first time that VHCC cases have been cut by this Government. I do not think that they were cut by the previous Government. Were they? I stand corrected.

There was a consultation and this has not come out of the blue. I have been talking to the Bar for three and a half years about these cuts.

I hope we do not get an interruption from my noble friend Lord Phillips. He came in very late.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, it is now 11 pm so I shall be very brief but I do want to reply to the debate. Twelve out of the 13 Members of your Lordships’ House who have spoken in this debate have spoken consistently with the same thread, criticising the Government for the introduction of these statutory instruments. As I listened to those contributions, I reminded myself of what a privilege it is to be a Member of your Lordships’ House. There were magnificent speeches, many of them from the Cross Benches, three from noble and learned Lords who have held very senior positions in the judiciary, and two from noble and learned Members of this House who have been Attorney-General on opposite sides, with very different types of practice in their experience.

I believe that your Lordships have provided my noble friend the Minster with the finest debating tutorial he could ever have had and that the Lord Chancellor could ever have had in how wrong the Government’s decision to introduce these statutory instruments has been.

[Lord McNally]

My noble friend interrupted me and I shall interrupt him just once. It is only for this reflection: yes, we have had a good debate and I do not doubt the eminence of those who contributed to it, but I have said it before: the legal profession must not exist in a bubble and congratulate or commiserate with itself. I sometimes wish that this House was full to the gunwales so that we could have a proper debate on these matters and see whether this unanimity of view about the sufferings of the legal profession was quite so evenly spread as a debate like this might sometimes indicate.

[Lord Carlile of Berriew]

My noble friend is a much liked, popular and witty Member of this House and I will not rise to the uncharacteristic and unjustified provocation of that intervention. I was about to say that I hope that the Lord Chancellor himself will read every word of this debate and will take note of what I think I described earlier as the finest debating tutorial one could have. If my noble friend is saying that all that has happened in this House in the past couple of hours has been a demonstration of self-interest by lawyers, one or two non-lawyers, judges and others who are acting in concert to defy the Government then, in my view, that demeans what has been a magnificent debate. I thank all those who have taken part for giving me the privilege that I described earlier.

I have some sympathy for my noble friend the Minister who sought to respond to the debate. He read out a familiar litany, but it was a litany without a message save the message of mistake. He allowed himself to stray into the suggestion that there had been consultation about the VHCC changes. He sought to elide into the VHCC changes consultation that had taken place on completely different legal issues. It is important to emphasise at the end of this debate that there was no—zero, zilch—consultation on these VHCC changes, and that is fundamental to the complaint that the Bar makes about the high-handed way in which this unilateral breach of contract has occurred.

My noble friend said that the Government were “under responsibilities to make these cuts”—those were his very words; I noted them as he said them. However, with great respect to my noble friend, that phrase is meaningless. The Government have the responsibility to get it right, not just to make cuts for the sake of making them. He said in relation to what is going to happen to these VHCC cases, in which there are now no advocates, that “we will just have to see how this works out”. That took my breath away. It is an acceptance that there are now cases with no advocates, that there is no plan B for these cases and that the promises that the Government made to everyone that it would all be all right on the day have simply been shown to be wrong. I would never accuse my noble friend of being incoherent but the brief that he had was full of incoherence, and we saw it displayed this evening.

At this late hour, I do not propose to divide the House but I believe that I do not need to do so. This debate has been well worth having because of its overwhelming effect of showing that the Government are wrong in what they have done with these cases and that the explanation which my noble friend sought to give just did not hold water at all. With the permission of the House, I beg leave to withdraw the Motion.

Motion withdrawn.

Legal Aid

Lord Carlile of Berriew Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I join in congratulating the noble Baroness, Lady Deech, on securing this debate on this very important subject. I also declare my interest. It is set out in the register, but for relevant purposes, I have practised criminal law for 42 years, of which I have spent 28 in one or other of these Houses of Parliament observing the rather tense relationship between politics and law.

This debate is about something fundamental: the quality of the society in which we live. It is about the clarity of the political conscience, which must be sure that our legal institutions are properly implemented and are to be trusted. One of my great mentors was the much-lamented Emlyn Hooson, a colleague of ours on these Benches and one of my predecessors as Member of Parliament for Montgomeryshire. Emlyn Hooson represented Ian Brady on legal aid at his celebrated trial—the Moors murders trial. One of the reasons why we have been able to be confident that what has happened to Ian Brady has been just is because he had the advantage of a proper legal aid defence of the highest quality. We should let go of that at our peril.

The avoidance and the remedying of injustice are dependent on a quality criminal legal aid system, which needs in appropriate cases the best advocates and the best solicitors. Without that, our consciences will be failed. We have heard some criticism of the Bar Council today. I do not hear the same criticism when the doctors in your Lordships’ House stand up and rely on the representation of the British Medical Council or, at least until recent days, when a trade union such as Unite stands up and speaks for workers in this country who find it difficult to negotiate on their own behalf. I applaud the Bar Council, the Criminal Bar Association and the Law Society because they have had the courage to say firmly what needs to be said strongly to protect our legal system in this country.

The reality is that young barristers and young advocates who are solicitors are working for smaller amounts of money than they would earn in almost any other profession. Even without these suggested legal aid reforms, Queen’s Counsel—silks—are being priced out of the market by restrictions on their appearance and by the diminishing amount of work. There is now developing a divided legal profession in which some are still earning large amounts of money—why should they not because they are in the private market? Those of us who choose to remain in the public market are in an almost entirely different profession. That is not good for the health of our society or for the law.

May I specifically say a word about very high-cost cases? These are the small number of extremely complex fraud cases that come before the criminal courts. VHCC could equally stand for very highly challenging cases. They involve huge sums and massive complexity; they are every bit as complicated as any commercial arbitration. Yet it is the legal aid system that is targeted by an entirely arbitrary cut of 30% which, outrageously, is intended to be applied to cases that have already started. People who are involved—I am involved in one such case—will have to take, if they do not return their briefs in outrage, a 30% cut as they continue that case if these proposals come into force. Yet the Ministry of Justice has failed to engage with other issues about such cases. VHCCs are overadministered and, outrageously, restrained assets—the assets, until they are restrained, of defendants—cannot be used to pay for their defences. That seems to be wholly anomalous and unacceptable. The VHCC proposals are quite simply outrageous.

Let us not forget that the Serious Fraud Office sometimes gets things wrong. It took the noble and learned Lord, Lord Goldsmith, who incidentally was not being briefed at legal aid rates as far as I know, to sort out the misbehaviour of the Serious Fraud Office under its previous leadership to ensure that two brothers, Robert and Vincent Tchenguiz did not face wrongful prosecution for alleged crimes that they had not committed. It sometimes takes the best to sort out bad decisions by public authorities.

Finally, I just want to say a word about prison law because I used to be the president of the Howard League for Penal Reform. I have now been succeeded by the noble Lord, Lord Myners. The changes in prison law will not save money and will increase costs. They will undermine the principle of rehabilitation. More prisoners will become stuck in jail. They will result particularly in specialist lawyers being replaced by less experienced lawyers for the same price. There is not time to develop this, but I urge the Minister to attend closely to the submissions made by the Howard League and particularly by Laura Janes, the acting legal director, who is the great expert in these matters.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, it is important that I put on the record the Government’s point of view in this important debate, so I will not be able to follow the usual courtesy of a detailed response to the many individual points and questions raised. However, I will treat the Hansard of this debate as an input into the consultation under way, and I will see whether I can cover some of the specific points raised in an omnibus letter that we will circulate to noble Lords.

First, I, too, congratulate the noble Baroness, Lady Deech, on securing a debate on this important subject. It has attracted a speakers list of great experience and expertise, and the debate as a whole has been a major contribution to what I emphasise is a consultation still in progress. This debate and the consultation that has initiated it take place against a background of two inescapable realities. The first was stated by the noble Baroness, Lady Deech, herself when she spoke in the debate on the gracious Speech on 9 May. She was also quoted today by the noble and learned Lord, Lord Hope. She said:

“It is self-evident that there cannot be a bottomless fund for legal aid”.—[Official Report, 9/3/13; col. 101.]

The second reality was made clear by the noble Lord, Lord Carter, in his review of the procurement of legal aid conducted in 2006. He said:

“A healthy legal services market should be driven by best value competition based on quality, capacity and price. All three of these factors should lead to the restructuring of the supply market”.

Of his own proposals, he said:

“The emphasis of the proposals has been upon providing incentives for firms to structure their businesses in such a way that legal aid services can be procured more effectively, and that the service is delivered more efficiently”.

It is therefore no surprise that previous Governments wrestled with this issue.

The establishment of the Legal Services Commission in 1999 reformed the part of the system which funds legal aid services but not the part which delivers them. Costs continued to increase, giving rise to several series of fee cuts. The case for reform was certainly enough to persuade the Opposition to include a commitment to find greater savings from the legal aid scheme in their 2010 manifesto. Their consultation document, Restructuring the Delivery of Criminal Defence Services, published earlier that year—this was quoted by the noble Lord, Lord Faulks—said:

“Currently the criminal defence service is highly fragmented, with a large number of small suppliers and relatively few large suppliers”.

The need for reform of legal aid-funded services in order to deliver a cost-effective, sustainable legal aid scheme is well established, but it is not the only driver for reform of the legal professions. Changes in technology and its increasingly fundamental role in the functioning of the criminal justice system demand the kinds of changes to working practices and business models seen throughout the public and private sectors. The introduction of alternative business structures, Jackson reforms and an increasingly well informed customer base are all examples of changes which present their own challenges that the legal professions must meet. Those changes are accompanied by the brutal fact that the number of businesses providing criminal legal aid services now vastly outstrips demand for such services.

The realities have been gathering force and relevance for decades, so it is absurd for the professions to claim that they have been bounced by a short and ill considered consultation. When I first came into this office in 2010, the Bar Council was starting to consider ways to restructure the way that it delivers its services. It was looking at what it called procure co-type organisations. I had a very interesting discussion with the then chair of the Bar Council about its vision for the future of the Bar. I understand that work to explore such arrangements ceased at the request of senior members of the Bar due to concerns that it would aid the Government in introducing competitive tendering. We want the Law Society and the Bar Council to engage with changes which are in many cases inevitable.

The Government recognise that the services the professions deliver are a vital component of our legal system and ensure access to justice and equality before the law. We recognise that the independent judiciary—perhaps the most critical element of our justice system—could not survive without drawing from the pool of talent that the professions create.

However, alongside the need to ensure access to justice and a healthy, sustainable legal sector, the professions must also recognise that the Government are entitled to seek the best possible value for money from the legal aid budget. The coalition’s programme for government made a commitment to review the legal aid scheme with the aim of finding savings, culminating in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This will have removed around £320 million from the legal aid budget by 2014-15—largely, as has been explained, from the civil legal aid budget—as well as strengthening accountability and introducing a more rigorous approach to financial management by creating the Legal Aid Agency.

However, the current financial climate means that it is necessary to look again at everything that the Ministry of Justice is doing, including in relation to legal aid, in order to make further savings, particularly in respect of criminal legal aid. This was the focus of the consultation, which has recently concluded, and the aim is to further reduce the legal aid spend by around £220 million by 2018-19.

The consultation, published in April, included a proposal to move to a model of price-competitive tendering in the criminal legal aid market. Conscious of the professions’ objections to the principle of “one case, one fee”, we proposed to exclude criminal advocacy from the competition model, instead proposing to restructure the Crown Court advocacy scheme. Being mindful of the great disparity in the level of fee income received by advocates for Crown Court work, our proposals would rebalance fee income so that those at the top end took the greatest reduction and the lower earners the least. Indeed, some lower earners may see a small increase in their fee income.

Alongside this, we sought to further increase efficiency by proposing a sensible reduction in the use of multiple counsel. To ensure public confidence in the level of expenditure on the longest and most expensive cases, as well as delivering the necessary savings for the legal aid scheme, we propose to reduce the rates paid for criminal, very high-cost cases by 30%. We have also included some small but important reforms to civil legal aid and expert fees to ensure that these, too, are fair and proportionate, and consistent with those paid for similar work elsewhere.

Our proposals also seek to address a number of issues where the savings may be small but we believe that the impact on public confidence in the legal aid scheme is significant. We propose to reduce the scope of prison law cases funded through legal aid, directing less serious matters to the internal prisoner complaints process. The prisoner complaints system was updated in 2012 and has recently been audited with a review of the adequacy, effectiveness and reliability of controls over prisoner complaints, with no significant concerns identified. Criminal legal aid will remain for a significant number of cases where liberty is at stake, such as parole hearings, or where there is a risk of extra days being added, such as in disciplinary cases.

By proposing a Crown Court eligibility threshold, we are ensuring that those who have the means to pay for their own defence do so. By setting it at twice the average household disposable income, we have ensured that it is fair.

In introducing a residence test, we seek to ensure that civil legal aid expenditure is targeted at those who have a strong connection to the UK. As with other public services, legal aid is paid for by UK taxpayers and we do not believe that it should be provided to those who have never set foot in this country or whose connection is tenuous.

We have already proposed an exception for asylum seekers in recognition of their particular vulnerability—

[Lord Carlile of Berriew]

My Lords—

[Lord McNally]

No, I am not giving way. I am sorry. I have five minutes left. It is a time-limited debate and the noble Lord has had his time.

[Lord Carlile of Berriew]

Will the noble Lord answer the debate?

[Lord McNally]

I am answering the debate.

We have already proposed an exception for asylum seekers, in recognition of their particular vulnerability, and made clear that persons who did not meet the test would be entitled to apply for exceptional funding. We have heard the concerns raised during the consultation and in today’s debate in respect of the impact of the test on other groups of people or types of cases. We will reflect carefully on these points before making any further decisions.

We recognise judicial review as an important tool of redress which balances the power of the state. We continue to believe that it is important to make legal aid available for most judicial review cases. Under this proposal, legal aid for the earlier stages of a case would not be affected. Payment would continue as now for work to investigate the strength of a claim or to engage in correspondence as required by the pre-action protocol. This is important as many cases will settle or conclude at this point without issuing an application, avoiding further costs to the legal aid scheme, the courts and public authorities. However, we are concerned that legal aid is sometimes treated as a resource to further pursue weak cases that have little effect other than to waste taxpayers’ money. We do not think it is fair for taxpayers to pay the bills for weak cases that have little effect other than to incur costs for public authorities and the legal aid scheme. We set out our initial assessment of the impact of the proposals along with the consultation paper and invited consultees to comment on the extent and range of those impacts and set out any concerns that they had in this regard. We are now carefully considering all responses and the issues that they raised.

Much of what has been said about our proposals on price competition has quite simply been false. The debate has been dogged by a baffling conflation of the Government’s intention to manage the criminal legal aid scheme, through around a quarter of the current number of contracts, with a mythical intention to see only around a quarter of the present number of firms. Some of the rhetoric has risked misleading the public that legal aid would no longer be available. However, the professions have made clear their views on the importance of client choice both for the benefit of clients themselves and for the health of the market more generally. As the Justice Secretary told the Justice Select Committee last week, we have listened and will put forward revised proposals in the autumn. We have also listened on the proposed residence test and will consider the issues raised as well as the comments made across the proposals from nearly16,000 responses.

This House has much collective wisdom and experience about the issues that we have been discussing today. I want to make it clear that this is a real consultation and we are listening. The decision that Ministers have to take will be in the context of the economic realities from which the legal aid fund cannot escape. There will be cuts that will mean some tough choices. However, when the cuts have been made we will still be left with one of the most generous legal aid schemes in the world. I would make the point that although I have never compared it with continental legal aid schemes, I have compared it with common law legal aid schemes in Australia, Canada, New Zealand and elsewhere—and noble Lords will find that it is one of the most generous in the world. I am proud of that fact. I want us to have a generous legal aid scheme. Access to justice is important. I want us to work on ways and ideas, some of which have been thrown up by the consultation, which will give long-term sustainability to legal aid.

However, long-term sustainability means the legal professions facing up to some hard facts. There continues to be oversupply in both parts of the profession, with too many lawyers chasing a limited amount of publicly funded work. Lawyers themselves have to address the further issues of quality and consolidation which will remain long after this present argument has been settled. Alternative business structures, the Jackson reforms, no-win no-fee, damage-based agreements and conditional fee agreements, will all impact on the organisation and structure of the profession. There are wider issues, such as a lack of social mobility and diversity which cannot be solved simply by tweaking the legal aid scheme.

In some ways, I have been disappointed at the way in which those who have responsibilities in these areas have refused to engage with these fundamental issues. I agree with my noble friend Lord Marks that we have to seek a new settlement in this matter. There is still time to do so. Our legal system, our respect for the rule of law and the eminence and integrity of our judiciary are precious gifts passed down from one generation to another. We all have a duty to protect what is best while managing the change that is inevitable. That is the task before us now, and I again call on all those who care about the system of justice to join us in that task.