European Union (Withdrawal Agreement) Bill

Debate between Lord Carlile of Berriew and Lord Goldsmith

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Carlile of Berriew]

My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.

I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.

My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.

The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.

[Lord Goldsmith (Lab)]

My Lords, I did not have the privilege of attending the House when Committee took place, but I have read every word of the debate on this clause. It is so powerful to see, I think, three former Lord Chief Justices, a former Lord Chancellor, a former Law Lord, the chairman of our Constitution Committee and other distinguished people speak perhaps not unanimously as to the right outcome but certainly unanimously condemning what the Government seek to do. We have heard it again today; I fully agree with what was said by the noble Lord, Lord Pannick, by my noble friend Lord Howarth and, of course, by the noble and learned Lord, Lord Mackay of Clashfern.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Debate between Lord Carlile of Berriew and Lord Goldsmith

Wednesday 29th January 2014 Lords Chamber

[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.