Assisted Dying Bill [HL]

Lord Cormack Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I want to make one brief point. I agree with the speakers who have contributed so far that we need clarity and truth. The issue here is the decision to be made. If someone wants to commit suicide, they are deciding whether or not they wish to die. This Bill is not about that at all. It is about people who are dying, and the only question for them is how they die and whether they can die with dignity. That is an entirely different question, and it is extremely important that the Bill is absolutely clear about that distinction.

[Lord Cormack (Con)]

My Lords, I hate to cross swords with the noble Baroness, for whom I have enormous respect, but frankly she is wrong. This is about accelerating a death by wilful means, and there is no case for ambiguity here. The noble Lord, Lord Brennan, has made a powerful speech and I endorse all that he said. There is no case for ambiguity. We are talking about terminally ill people who have decided— often, I imagine, after long and careful thought and in consideration of their families—that they want to bring forward the termination. That is suicide, and they are going to be assisted. It would be in the interests not only of clarity but of honesty to make the Bill the “assisted suicide Bill”, because then we would know what we are talking about and people in the country would know what we are talking about. There is a powerful case for the Bill and a powerful case against it, but there is no case at all for fudging it.

[Lord Cashman (Lab)]

My Lords, I want to speak on this issue and against the amendment. Some colleagues will know that shortly before I entered this House, my partner died of a very aggressive cancer known as angiosarcoma. It came back swiftly and his death, I am certain, was assisted. During that period at the brilliant Royal Marsden Hospital, I was absolutely clear that if my husband of six years and partner of 31 years was to die, I wanted to die with him. I raise this not out of any sentiment or emotion, but for the very clarity that we need when dealing with assisted dying. I was healthy and wanted to commit suicide to end a healthy life. My partner—my husband—was facing a death that could happen in a week, three days or three months. To see him almost completely out of his senses because of the morphine, but still aware that he was unable to breathe, offered me clarity enough that I wanted to commit suicide and that my husband, who was dying, needed his death accelerated. With respect to noble Lords who are proposing this amendment, it will not bring clarity; it will, sadly, do the reverse.

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[Lord Dobbs]

Far from deliberately ignoring the word, I would like to turn to another point that I think will answer the noble Baroness’s question precisely. If we insist on using the word “suicide”, as required by the amendment, we could end up with entirely unintended and counterproductive consequences. When the Bill becomes law—as I believe eventually it will—if it legalises suicide rather than assisted dying, might that not tend to make all forms of suicide more acceptable? It would become the thin end of the wedge, the slippery slope, by making suicide in general more acceptable. That is not what I want. “Suicide” is the wrong terminology because this is a different matter from the other types of death that come under the determination of suicide.

[Lord Cormack]

My Lords—

[Lord Dobbs]

May I just finish this sentence? It might help bring about the very outcome that the opponents of the Bill seek to avoid.

[Lord Cormack]

If I ask my noble friend to give me a cup of hemlock, telling him that I am going to drink it, and he gives it to me and I drink it, have I committed suicide or not?

[Lord Dobbs]

The Bill is nothing to do with going off into a corner and getting someone to assist you in a death like that. This is a totally different legal and medical environment. We will all die.

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[Lord Harries of Pentregarth]

My Lords, I have added my name in support of the amendment of the noble Lord, Lord Carlile, but I also support the other amendments in this group. I do not intend to go over the reasons already stated so fluently by both noble Lords; I just want to emphasise the point of this whole range of amendments, which is quite simply to make this Bill much safer. If it is eventually passed, with these amendments people will have much more confidence in it than they have as it stands at present.

As we know, a great number of doctors—probably the majority—are opposed to any Bill such as this and therefore we are bound to get a situation where people who are sympathetic to what is proposed will look round for a doctor who shares their point of view. Clearly, we need to avoid that. Therefore, instead of just one doctor, we need two doctors, as the amendment says. One of the doctors needs to know the patient very well and needs to be not just registered if retired but, as the noble Baroness, Lady Finlay, said, currently licensed. These kinds of safeguards will ensure that the Bill, if eventually passed, has the confidence of the public.

There is also the very difficult question of diagnosis. I am a member of the review body of the noble Baroness, Lady Neuberger—the Liverpool care pathway. It has certainly been brought home to us that diagnosing a person’s death is a very inexact science, and indeed we are calling for more research on this.

Perhaps, on this very subject, the Committee will allow a brief moment of levity in relation to the remarks of the noble Lord, Lord Winston, on the Lockerbie bomber. He had three months to live but, as someone said, it was three months in Scotland—with due apologies to all Scottish noble Lords here. I apologise for levity on what is a very serious matter. However, I very much hope that the supporters of the Bill will accept the majority of the amendments in this group, as they will undoubtedly give the general public more confidence in it.

[Lord Cormack]

My Lords, if we are to have this Bill, it is very important, as the noble and right reverend Lord said, that there should be confidence in it. I just want to address a few brief remarks to the amendment of my noble friend Lord Carlile of Berriew, to which the noble and right reverend Lord is also a signatory.

I remember as a young Member of Parliament in Staffordshire talking to a rural general practitioner who had been there for many years. He made the point to me—I have quoted it before—that a doctor can only truly know his patient if he knows him in his home as well as in the surgery. I know that things have changed a lot since then but I treasure my relationship with my general practitioner—it is one of the most important relationships that I have. I like to feel that I can talk uninhibitedly to him, and indeed I can.

It is very important that we avoid falling into a trap. Because of the widespread reluctance among the medical profession to support the Bill, we could fall into the trap of certain doctors being available for hire. That is the last thing that the noble and learned Lord, Lord Falconer, would want. I have never at any stage doubted for a single second his utter sincerity and his honourable motives. That should be taken as read throughout the House, and I believe that it is. However, where a large number of medical practitioners feel, for the best reasons of conscience, that they cannot sign up to this Bill, there will be a danger—I put it no higher than that but one has seen it in the field of abortion—that some doctors will in effect be for hire. That has to be guarded against and one of the best ways of doing so is to ensure that there is an amendment similar to that moved by my noble friend. I hope that, when he comes to respond, the noble and learned Lord, Lord Falconer, will accept that.

I have grave reservations about this Bill. I do not want the Bill but I understand why many do. Therefore, if it, or a Bill like it in the next Parliament, is to go on to the statute book, the safeguards must be real, comprehensive and absolute. If a doctor is to sign a document, that should happen only after lengthy conversations with the patient concerned—after a real discussion. I would like to feel that during that discussion the doctor, whatever his or her personal views, can play devil’s advocate and point out all aspects of this ultimate decision that the patient is on the verge of making. However, that can happen only if there is a real knowledge of the patient and a proper relationship between the doctor and the patient. Six months is a short enough time. I have been registered with my general practitioner for over 30 years. Many noble Lords will have had similar long relationships and others will have had shorter ones. But before you talk to a doctor you feel the need to know him, and he or she needs to know you. The amendment moved by my noble friend is modest but it helps to provide a safeguard which, if a Bill such as this is to go on to the statute book, we would all like to feel is in place.

[Lord Berkeley of Knighton]

My Lords—

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[Lord Falconer of Thoroton]

I could not agree more with the approach that underlies what the noble Lord, Lord Maginnis, has said. That is why, although I accept and admire the spirit in which it is offered, I do not think that it is a sensible amendment, because it would lead to so many situations that would then not have been covered by a Bill which, on this hypothesis, had been passed. It would therefore be a very bad idea to accept it. I acknowledge and accept the idea that you should not pass a Bill that then leads to problems, which is exactly what the amendment would do. However, I anticipate that the noble Lord would say that he had the precise reverse in mind.

[Lord Cormack]

I am most grateful to the noble and learned Lord for giving way, and particularly for the references that he has made to the points made by the noble Lord, Lord Empey, my noble friend Lord Jopling, and me. In response to the noble Lord, Lord Jopling, he understandably poured some cold water on the four-year limit, but would he accept that a limit of a reasonable time would help allay the fears that my noble friend Lord Jopling, the noble Lord, Lord Empey, and I all have?

[Lord Falconer of Thoroton]

As I indicated to the noble Lord, Lord Jopling, I am more than happy to talk about it. The example of the cancer specialist or the motor neurone disease specialist makes me instinctively, having considered it quite carefully, against the idea of any limit, but I am more than happy to discuss it.

Social Action, Responsibility and Heroism Bill

Lord Cormack Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Lloyd of Berwick]

I am quite happy to accept that there must have been a misunderstanding. However, that was certainly my understanding of the position, just as my understanding of the position at Second Reading was that they would be supporting my amendment. I was wrong about that and I am wrong again. However, that still leaves the question of why on earth the Opposition are not supporting the amendment. After all, on the whole, it is the duty of the Opposition to oppose. If they found that they were against something—and I understood them to be against Clauses 2 and 4, just as they are against Clause 3—in the ordinary way they would oppose it.

However, I am wrong about that. The reason given for this seems to me to be entirely incomprehensible. The reason why the Opposition now do not want to oppose Clauses 2 and 4 is that if they did so while opposing Clause 3, that would then have some effect—which I really did not understand—on the attitude of the Lord Chancellor in relation to some other Bill; namely, the Criminal Justice and Courts Bill. That is a wholly irrational ground for an Opposition to act on. I would have thought it their duty, if they are against Clauses 2 and 4, to oppose them. They say, however, that, for reasons which I do not understand, they do not intend to take that view officially. I hope that at least some members of the party which is represented by those on the Opposition Front Bench who take that view will think differently.

[Lord Cormack (Con)]

My Lords, surely my noble and learned friend, as I will call him on this occasion, has heard of the mugwumps, who sat on the fence with their mugs on one side and their wumps on the other.

Criminal Justice and Courts Bill

Lord Cormack Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Cormack]

My Lords, I strongly support what my noble friend Lord Deben said in a truly remarkable, powerful and splendid speech. What he did not say—which I think that we can all say—is that the other place, of which I was proud to be a Member for 40 years, was misdirected by the Lord Chancellor. To misdirect a jury is not exactly a trivial matter but the Lord Chancellor has had the good grace and dignity to apologise. The fact is that the House of Commons made its decision having been wrongly advised and made it in a very short space of time. An hour was given up for debates on which your Lordships’ House had spent considerably longer.

Like my noble friend Lord Deben, I was somewhat concerned by the remarks of the noble Lord, Lord Beecham. He is not normally like that but he almost put me into a position where I could do no more than abstain. I say to him that no party has the monopoly over upholding the rule of law. I am inclined to vote for the amendment in the name of the noble Lord, Lord Pannick, because I am a Conservative and because, like my noble friend Lord Deben, I am proud of the part that the Conservative Party has played over the centuries in upholding the rule of law.

I say also to all my colleagues on these Benches that this is not a question of party loyalty or disloyalty. I was in the other place for the whole of the 16 years that my noble friend Lord Deben was a Minister. Of course, I was not a Minister for any of those years and frequently found myself at odds with things that the Government proposed. On a number of occasions I voted accordingly because I always tried to uphold the dictum that one’s order of priorities as a parliamentarian in the other place is country, constituency and party. In your Lordships’ House, we do not have constituency responsibilities but we do have national responsibilities.

If we believe that something is being done that is not in the national interest, we have an absolute duty to speak and to vote accordingly. If this House has any point or purpose—I echo in slightly different words something said by my noble friend Lord Deben—it is to say to the other place, “You have, we believe in all humility, got it wrong. Please, please think again”. We did that last time and the other place did not. It did not think again because it was wrongly advised by the very man who should have been advising them correctly.

Therefore, we have every right this evening to say, “Please reconsider and take a little longer in reconsidering”. We are not talking about the convenience of governance or about narrow party advantage, we are talking about something that is fundamental to the survival of a parliamentary democracy and to the rule of law. I very much hope that my noble friend the Minister, for whom we all have real regard, will be able to say something that will satisfy us, but I am bound to say that I am not overoptimistic. If he does not, I shall have no alternative but to go into the Lobby behind the noble Lord, Lord Pannick.

[Lord Phillips of Sudbury]

My Lords, when I intervened on the Minister and asked for the evidence or indications to underpin the need for this amendment, he, as the House heard, declined to give the same. It was important to add evidence or indications. I perfectly accept that a lot of the matters with which we are dealing in this amendment cannot be susceptible to simple adding or subtracting.

I want to make one point. I believe that we live in a time of democratic crisis. The public are voting for UKIP and, to some extent, they voted in droves for Scottish independence because there is a real breakdown of confidence in the main parties. We all know that there is a breakdown of trust in the great institutions of our state, in business and in us. We cannot brush aside the expenses tragedy of a few years back as if it is all forgotten and done with. It is not. I went to Clacton and canvassed. My goodness, it is not. There is a breakdown in trust. Of all the times to bring in a provision as contained in Clause 64, this is absolutely not the time.

Surely it is a simple point that the one thing that controls and contains any Government, however strong or however wrong, is the instrument of judicial review. I do not think that it is justifiable at all to reduce the extent and power of judicial review to any extent. That is the rule of law. If the proposal were to be brought forward, it surely could be brought forward with any semblance of decency only if the evidence for the need for it—the essentiality of it—was abundantly plain. We all know that it is absolutely as miles from that as it could be.

I am completely persuaded that there is only one thing to do tonight. I regret voting against a heavy whip but sometimes we all know that we have to do that, which is what this House is here for. I say again, we cannot take the step proposed by the Government to reduce the extent and power of judicial review.

[Lord Horam (Con)]

My Lords, perhaps I may add an element of balance to this debate, although balance may not be exactly the right word since I probably am the only person who is going to speak in support of my noble friend the Minister in order that the debate may be not wholly, completely 100% unbalanced but a little bit balanced. I want to explain to noble Lords what worries us. I am not a lawyer so I cannot comment on some of the technical points that have been made. I am worried that there is considerable abuse of judicial review.

My noble friend Lord Deben—who was kind enough to say on a previous occasion that we have never disagreed on anything even when we were in different parties, which is largely true—said, in relation to the example brought forward at the beginning of the Minister’s speech, that it was not very convincing. I remind the House of the example which is, I think, shocking and a defining example of how judicial review can be abused. That point is made by the noble Lord, Lord Adonis, in his book, Education, Education, Education. He wrote:

“As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees”.

That is an example of some years ago.

My understanding is that that is happening today not only in education but in rail. For example, the Government have already had to spend £460,000 in outside legal fees to defend the judicial reviews against HS2. I am aware of judicial reviews in regard to roads. Development was rather scoffed at by the noble Lord, Lord Beecham, but in many instances it means housing projects and we need more housing in this country.

[Lord Cormack]

Is my noble friend really saying that the legitimate environmental concerns of people who have misgivings about HS2 should be overridden regardless? Surely it is entirely legitimate for those who have real interests to be able to pursue those interests by legal means.

[Lord Horam]

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

Offenders: Rehabilitation

Lord Cormack Excerpts

Thursday 27th November 2014 Lords Chamber

Asked by

[Lord Cormack]

To ask Her Majesty’s Government what is their policy on the rehabilitation of offenders who have served their sentences and wish to resume their careers.

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

My Lords, most convictions become spent after a specified period and the person is then treated as though they had not committed the offence. The Government have reduced rehabilitation periods and allowed more convictions to become spent. However, to maintain public protection, certain spent convictions are disclosed for sensitive occupations.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for his Answer, but would he not accept that sending someone to prison is the punishment and that the purpose of prison, wherever possible, should be to rehabilitate so that that person can return to normal life and live a normal life? I accept that that is not always possible, but in most cases it should be. It is grievous to think of young people, in particular, who have had a successful career but who have made a mess, not being allowed to do that and almost being encouraged to reoffend.

Divorce (Financial Provision) Bill [HL]

Lord Cormack Excerpts

Friday 21st November 2014 Lords Chamber

[Lord St John of Bletso (CB)]

My Lords, I add my support for prenuptial agreements. I say that in the context that I trained as a Roman-Dutch lawyer, under which law a prenup is recognised. In an era when we have one of the highest divorce rates ever, certainly this is the time to simplify this important part of divorce law.

I say a prenup rather than a post-nup because obviously a prenup is more certain and there is far less scope for negotiation than with a post-nuptial agreement. But a prenup makes the likelihood of successful mediation far more likely than is the case now.

A common theme of the Bill has been to provide more certainty. Ideally, we want a clean break for those going through the unfortunate process of getting divorced. Apart from the huge cost of lengthy divorces, not much has been mentioned today about the huge stress that this has on children from this prolonged and tortuous process. The noble Baroness, Lady Wilcox, mentioned the important fact that, without this protection, those who have gone through traumatic divorces are far less likely to want to get remarried. I am sure that she will also have mentioned that 16 million people in Britain are over the age of 65. That is another reason why this clause should be promoted.

[Lord Cormack (Con)]

My Lords, I was not intending to speak but I have one or two points to make. When my noble friend talked about a cottage industry I thought that was probably scaling things down a little; it is a mansion industry rather than a cottage industry. I accept the total impeccable logic of the case advanced by the noble Baroness, Lady Deech. She is talking about an unfortunate necessity. Only this week I met a young girl in her 20s. I have known her since she was born. She married with great hope less than 18 months ago and the marriage is foundering now. Of course, I accept all that, but am I alone in your Lordships’ House in expressing infinite regret that we are where we are?

Criminal Justice and Courts Bill

Lord Cormack Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Cormack (Con)]

My Lords, not for the first time, the noble Baroness, Lady Williams, has delivered a brilliant speech—a wonderful defence of Conservative values. I congratulate her on that. She made an extremely telling point when she talked about the politicisation of the judiciary in the United States.

I am very proud to be an honorary citizen of Texas, but when I was in Texas in 1984, at the time of the presidential election, I was invited to go to a $1,500-a-plate barbecue in aid of the man who was running for chief justice of Texas. I said to my congressman colleague, “We don’t do it like that in the UK, and I am bound to say that I am extremely glad of that”. I am very glad that that is still the case.

We have heard some outstanding speeches this afternoon. My noble friend Lord Deben was at his very best. We heard a very powerful speech from the noble and learned Lord, Lord Woolf, and a short, telling, moving speech from the noble Baroness, Lady Campbell of Surbiton, who was, in effect, speaking for the least of the little ones—to use a biblical phrase.

It is a pity that we are here again, because we have been around this course before in debates on the Bill. I had very much hoped that my noble friend who will be responding to the debate, for whom I have a genuinely high regard, would have been able to persuade the Lord Chancellor and others to have taken note of the telling points made in your Lordships’ House. I cannot help but wonder if the fact that we no longer have a distinguished lawyer as Lord Chancellor has something to do with it.

In his speech, the noble and learned Lord, Lord Woolf, talked about the significant and powerful difference between the words “must” and “may”. It is a disservice to our democracy to fetter the judiciary. Of course, they can sometimes be exceptionally tiresome. There is not a single Member of your Lordships’ House—other than, perhaps, those who are learned in the law—who has not been exasperated and annoyed from time to time by what judges have said, but the rule of law is what guarantees our liberties in this country. I am so glad that the noble Lord, Lord Lester, quoted from that brilliant book by Tom Bingham. We must not allow any Government to fetter the freedom of the judiciary.

I have mentioned Magna Carta before and I make no apology for mentioning it again. It was alluded to by the noble Lord, Lord Lester. Next year we shall commemorate Magna Carta and celebrate its 800th anniversary. Already, two of the barons who look down on us in this place have gone: one is gracing an exhibition of Victorian sculpture in the United States and the other is to guard the entrance to the British Library’s great exhibition devoted to Magna Carta next year. Much of Magna Carta is not relevant today, but its centrality is:

“To no one will we sell, to no one deny … justice”.

We are moving in that direction if we do not amend the Bill in this way. That is not a good way to commemorate and celebrate.

The Prime Minister has made a number of extremely powerful comments about Magna Carta, after the first unfortunate one on American television. He has said how crucial it is that we recognise the values encapsulated in that most seminal document in our constitutional history. For all the pettifogging, interference and annoyance that might be caused, one of the things that we have to defend is the right of people like the noble Baroness to take on the big powers and the establishment.

How much I agreed with my noble friend Lord Carlile of Berriew when he was talking about those infrastructure projects. I do not agree with him on the infrastructure projects—on some I do, on some I do not—but that is another matter entirely. I agree that there must be the opportunity to challenge. No Government should have the power to prevent such a challenge simply because it is inconvenient.

I hope that, in winding up, the Minister will be able to indicate that he has listened to the almost unanimous voice in this debate. I hope that, even at this late stage, he will do something—perhaps introducing an amendment at Third Reading—to recognise that the case made by the noble Lord, Lord Pannick, in his opening speech and the case made so very powerfully with such quiet effectiveness by the noble and learned Lord, Lord Woolf, has been listened to in government circles and will be heeded.

[Lord Phillips of Worth Matravers (CB)]

My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.

Criminal Justice and Courts Bill

Lord Cormack Excerpts

Wednesday 30th July 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I want to ask a question which was touched on by my noble friend Lord Beecham, by the noble Baroness, Lady Campbell of Surbiton, in our previous grouping, and also today by the noble Lord, Lord Pannick. At Second Reading, the Minister categorically assured your Lordships’ House that ensuring the courts have the information they need when awarding costs,

“does not mean that everyone who donates to a campaign will be at risk”. — [Official Report, 30 June 2014; col. 1542.]

Yet in both written and oral briefings that I have received, this very risk has been one of the concerns that have been raised. For example, Liberty and the Bar Council both warn of the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs. Michael Spencer, solicitor for the Child Poverty Action Group—I remind the Committee of my interest as honorary president of that organisation, already referred to by the noble and learned Lord, Lord Woolf—spoke to the Human Rights Lawyers Association and warned:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

Will the Minister spell out in words that a non-lawyer can understand who will and will not be at risk of liability? If it is not everyone, is it someone or is it no one? There are two very different ways in which the assurance could be interpreted. If it is no one, could the Minister point—perhaps this is not so helpful for the non-lawyers—to where in the Bill that is made clear? Some people are reading the Bill as saying that it will affect someone, even if not absolutely everyone.

Perhaps the Minister could also answer some very specific questions put by the coalition of civil society organisations that have been briefing noble Lords about the clarity needed on third-party costs liability. They ask whether, if a family chips in to fund a relative’s challenge to a treatment in a care home, they will be liable for costs, perhaps putting their homes at risk. Lawyers may act pro bono to support people who cannot pay. Will their gift in kind mean that they are treated as someone funding or likely to fund the case? If a community group uses crowdsourcing to fund litigation, as was the case with the Lewisham hospital challenge, will every donation carry a cost risk?

I hope that today, once and for all, it can be clarified who exactly is at risk as a result of these clauses. If the fears being voiced by so many organisations are realised, I suspect that noble Lords may want to come back to this matter on Report.

[Lord Cormack (Con)]

My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.

We will be constantly reminded in 2015 of those central words of Magna Carta:

“To no one will we sell, to no one deny … justice”.

When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:

“To no one will we sell, to no one deny … justice”.

[Lord Davies of Stamford (Lab)]

My Lords, I agreed with the very eloquent plea on behalf of the system of judicial review in a country based on the rule of law which we have just heard from the noble and learned Lord, Lord Woolf. I agree also with the remarks of and amendments put forward by the noble Lords, Lord Beecham, Lord Pannick and Lord Marks.

My noble friend Lady Lister has asked a lot of the pertinent questions. The noble Lord, Lord Cormack, just mentioned Magna Carta. I draw his attention to another part of that document. Ever since Magna Carta, it has been a principle that the state, the King or the Government cannot seize the property of the citizen except by some very clearly defined legal process and in very sharply legally defined circumstances.

Although I think that the rules about making third parties financially liable for court cases are not as clear in the law as a whole, particularly since the Hamilton v Al Fayed case, as they should be—and it would very good if we could have those codified more precisely—what would happen to the law in the matter of judicial reviews if we passed this Bill as it is would be quite horrifying. Clause 66 (3) states that a,

“court or tribunal must consider whether to order costs to be paid by a person other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so”.

I repeat,

“or likely or able to do so”.

That is in no sense precisely defined—it could be anybody. It could be any of the people listed by my noble friend Lady Lister. It could be—could it not?—someone who is a member of a corporate body, even though he or she had played no particular part in preparing for, or promoting, that application for judicial review. It could be—that would be a fear—someone who was a known supporter of a particular NGO which itself was an applicant; but, again, without he or she having played any part in supporting that application, or perhaps without even knowing that the application was being put forward. That is a perfectly possible scenario. We need to make absolutely sure that none of these obvious perversions of justice could occur.

I totally agree with the implication of the rhetorical question posed in the House this morning by the noble Lord, Lord Pannick, which is: why are the Government doing this? Clearly the Government are doing this in order to close down the judicial review system to the greatest degree possible, with the intention of protecting the Executive branch—it is a very dangerous tendency. What they are doing here, however, is drafting a law which simply does not meet the elementary requirement to be precise, clear and unambiguous. I think this phrase,

“or likely or able to do so”,

is really quite terrifying, and I hope we get some clear definitions from the Minister. Just a statement from the Front Bench will not do: we need to remove these very offensive—very dangerous—words, and replace them with something much more precise.

Since this group of amendments encompasses two clauses and two clause stand part debates, on Clauses 65 and 66, it is probably the right moment for me to raise Clause 67. It is probably also right for me to raise another matter that is coming up: Clause 68. Perhaps Clause 68 is coming up in another group of amendments. Is that the case?

--- Later in debate ---

[Lord Cormack]

My Lords, I spoke earlier this year—I think it was in May—in the debate on the Motion proposed by the noble Lord, Lord Pannick. The arguments were overwhelming and there was nobody, other than the poor, beleaguered Minister, who defended. I am moved to get to my feet again because, once more, we have heard a very calm, analytical speech from the noble Lord, Lord Pannick, with some fairly devastating quotations. We have heard a moving speech from the noble Baroness, Lady Campbell of Surbiton. She says she is not a left-wing campaigner and she clearly is not. She says she is not a right-wing campaigner and she clearly is not. However, an inspiring campaigner she clearly is. She has given up her day today and we know that that taxes her resources very considerably. She has been here throughout the day and she has spoken, as she always does, forcefully—and on one occasion with some peculiar accompanying sound effects over which she had no immediate control, but she made light of that as she always does, as she also has a very good sense of humour.

The noble Baroness, Lady Lister, talked about public money. Of course she is right to focus on that because we are talking about public money, but what is public money? It is the taxpayers’ money, and many of those who need to benefit from our legal system are taxpayers. It is incumbent upon every Government to ensure the defence of the realm and the policing of our streets—one could go on and on—but this country is nothing if it is not a country which is wholly honouring the rule of law. In order for all our citizens—all Her Majesty’s subjects—to benefit from the rule of law, the right and proper sums must be spent on ensuring that we have the proper rule of law.

The noble Baroness talked about children. We have a particular and, indeed, one could argue, overriding responsibility for those who are least able to look after their own interests. That really is at the root of this afternoon’s brief debate on this amendment. Earlier, when he was replying with a great deal of sympathy as well as his normal aplomb, the Minister indicated that he and his ministerial colleagues want to consider what is said in Committee in this House and that he will come back on Report having reflected. He clearly needs to reflect on what has been said in this very brief debate. I hope he will, because I do not want to see Report punctuated by acrimonious Divisions, or even non-acrimonious Divisions, but I think we have to get it right, and at the moment we clearly have not.

I could go on, as I did briefly in the other debate, about my regret that the Lord Chancellor is no longer a lawyer, but we are, as they say, where we are. The Lord Chancellor is a highly intelligent man. I hope he is a man who will read what has been said today and in preceding debates in Committee, and that when he reads and listens to the arguments put with forensic skill, as I am sure they will be, by the Minister, he will agree that this measure needs very significant amendment.

[Lord Beecham]

My Lords, we have had many debates in the four years during which I have been privileged to be a Member of this House on the subject of legal aid. Three years on from the Legal Aid, Sentencing and Punishment of Offenders Bill, we continue to see measure after measure in statute and secondary legislation continuing the steady erosion of access to justice, exemplified in a similar context by the confirmation of a fall of 79% in the number of applications to employment tribunals following the introduction of substantial fees, and justified by the Justice Minister Mr Vara by the curious assertion that:

“It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution”.

It is notable that he apparently does not think it reasonable for employers in such cases, even those which are found to be liable, to make a contribution. It is an indication of the approach which the Government take to the issue of legal aid and access to justice.

As the noble Lord, Lord Pannick, reminded us, during the debates on the LASPO Bill, the Government said legal aid would continue to be available for judicial review, but that position, as he explained, has been substantially undermined. Legal aid is no longer to be available for the preliminary stage of applying for permission to seek judicial review, notwithstanding the tight timescales for making such applications after the making of the decision which evokes the application or the fact that often cases are settled with the respondent acting to correct the position before a hearing.

We now face an additional problem in that the Bill, if not amended, would require an applicant to prove a high likelihood of success at the permission stage—something that we discussed earlier today. That necessarily implies a great deal of preparatory work with absolutely no guarantee of funding—fine if you are a landowner, developer or commercial organisation challenging a decision, with the means to pay for such advice, but fatal if you do not have the wherewithal to pay for the necessary advice and support.

Perhaps the nastiest change the Government are pursuing is the introduction of a residence test for legal aid, which would apply to judicial review and to most other areas of law. This would apply to everybody over the age of 12 months who could not prove a period of continuous residence of at least 12 months in the UK at some point in their lifetime.

As my noble friend Lady Lister has reminded us, the Joint Committee on Human Rights was particularly, though by no means exclusively, concerned about the impact of this position on children, and concluded that it was in breach of the UN Convention on the Rights of the Child, because it would prevent children having effective legal representation in cases that affect them. It noted that the Government had no information as to the number of children who might be affected, or the savings that would accrue as a result of imposing the test.

The Secondary Legislation Scrutiny Committee was also critical, not least in relation to the evidential requirements for a residence test, which is apparently to be carried out by the provider. The Ministry of Justice had not worked through all aspects of the policy, and the committee recommended that it should make a clear statement before the order—which was due to be subject to the affirmative procedure in your Lordships’ House recently, and itself became the subject of an application for judicial review—was considered. The committee concluded by noting that,

“this exclusion is being pursued primarily as a matter of principle since the savings made cannot be quantified. It is a very sensitive matter and the House will wish to be absolutely clear on how the residence test will operate in practice”,

and recommended that the order, which was due to be debated two weeks ago, should not be debated until these items had been published.

In the event, as the noble Lord, Lord Pannick, has reminded us, the residence test for legal aid was ruled unlawful by the High Court, as it was adjudged that the provisions introduced a criterion—residence—that had nothing to do with what the Legal Aid, Sentencing and Punishment of Offenders Act provided as the criterion, which was need. The judgment applies to all areas in which legal aid might be required—including judicial review, which could, as my noble friend Lady Lister has reminded us, apply to children as it might to adults.

Sir Alan Moses referred—in unprecedented terms, I would have thought, for a senior judge to apply to any Minister, let alone a Lord Chancellor—to the comments made by the Lord Chancellor. He quoted Mr Grayling as saying in his article:

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway”.

Then he referred to a group of left-wing lawyers—which on this occasion did not include me—

[Lord Cormack]

Shame.

[Lord Beecham]

But I wish it had.

To this characteristic blast on the political dog whistle, Sir Alan responded with an extract from a 40-year-old judgement of Lord Scarman, who said,

“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.

That is a very clear statement of principle, which the proposal for the residence test, and the Bill’s proposals on judicial review in general, significantly threaten to undermine.

The Government, in their perennial search for votes—not from left-wing lawyers but from the right—are, of course, appealing. A less appealing prospect than this Government and this Lord Chancellor remaining in office and continuing to dismantle our system of justice is hard to imagine. I hope that the Government will listen to the noble Lord, Lord Pannick, and also listen, not necessarily to members of the Opposition but to the noble Lord, Lord Cormack, and the noble Baroness, Lady Campbell, and all the others who are disturbed by the trend of policy in this area—and I hope that they will rethink, in particular, the provision relating to judicial review. Whatever happens—in the Supreme Court, I presume—about the question of the legality of the residence test, it plainly conflicts with Lord Scarman’s clear judgment, which we should all respect.

Criminal Justice and Courts Bill

Lord Cormack Excerpts

Wednesday 23rd July 2014 Lords Chamber

I do not expect the Minister to answer in haste; indeed, I hope that he will not attempt to do so. Necessarily, opposing that a clause should stand part seems destructive but, in trying to persuade the Government to think again before embarking in haste on a project I fear they will come to regret at length, I am thinking about the long-term future for young people in custody. If the Government agree to do so, I hope that those made responsible for the thinking will accept the importance of listening to those who know far more than they do about the practical realities of dealing with difficult and damaged young people. As I have said many times, people are not things, particularly when they are young. If I decide not to seek the opinion of the Committee at this stage, it is because I hope for a considered government response before Report. I beg to move.

[Lord Cormack (Con)]

My Lords, I had not meant to speak but feel moved to do so because I was very persuaded by what the noble Lord, Lord Ramsbotham, said. He spoke of the Brinsford young offender institution, which is in my former constituency. He and I became acquainted because of the assiduous attention that he devoted to that institution. His initial report—which was an exceptionally damning one, as I am sure he would agree—led to a turnaround in that institution of a very marked nature, and, indeed, he reported on it more favourably later on. It seems to me that we have had no more effective or dedicated Chief Inspector of Prisons than the noble Lord, and he devoted particular time and attention to young offenders. He speaks with an authority that very few people can begin to command. All I would say, very briefly, is that if the noble Lord—having looked in detail at a proposal which does have certain superficial attractions—has come to this conclusion, it behoves government and others to think again very carefully indeed.

I hope that my noble friend the Minister, for whom I have a very great regard, will give an undertaking to have further consultations with the noble Lord and others to try to come up with a solution that meets the requirement that we all surely have—the rehabilitation of young offenders, many of whom have backgrounds which do not condone their actions but explain what they have done. Young people need, above all, that tough love and care and concern of which the noble Lord spoke. I found his remarks exceptionally persuasive. If he believes that what we need in this country is to learn from what has been achieved in other countries, particularly Spain, we should seek to do that.

Clearly it would be wrong to divide the House today on this—the whole purpose of this House is to have exploratory Committee sessions and then to come back, perhaps to vote, on Report. I hope that a vote will not be necessary, because this is not a subject that ought to divide us on party lines. We should have a totally common concern about it. I urge my noble friend to have the sort of discussions that I have just mentioned so that we can put some flesh on the bones. It is a very vague proposal. We do not really know what we are voting on. It is a little reminiscent of that extraordinary episode a couple of days ago.

Let us take to heart what the noble Lord said in his extremely persuasive speech and try to find a solution that really will fit all. I suspect that would be a solution that relied on a number of disparate facilities rather than creating one institution which would be—I hate to think of this—a sort of national for-profit institution. The only profit that can truly be achieved from having any sort of change in the way we treat our young offenders is the profit that rehabilitation brings and the fact that they do not offend again.

Criminal Justice and Courts Bill

Lord Cormack Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Deben]

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

[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?

Assisted Dying Bill [HL]

Lord Cormack Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Cormack (Con)]

My Lords, we have had some extremely moving and powerful speeches this morning; none more powerful than the speech just made by the noble and right reverend Lord, Lord Harries of Pentregarth. I am bound to say that I agree very much with the substance of his arguments.

I do not for a moment question the total integrity and sincerity and desires of the noble and learned Lord, Lord Falconer of Thoroton; I do not think that anyone in this House does. I think that we have to conduct this debate in a spirit of mutual tolerance and respect, and it is crucial that we should do so, but we also have to remember that, day after day in this House, we talk about the importance of the rule of law and our obligation to help those who are least able to help themselves—the most vulnerable in our society.

This morning, we have been dealing with both those issues, because we are dealing with the rule of law and how, or whether, we should change it in this regard, and we are dealing with how we are best able to help the most vulnerable in our society. I entirely agree with my noble and learned friend Lord Mackay of Clashfern and the noble and right reverend Lord, Lord Harries of Pentregarth, that the Bill should be given a Second Reading, because it is crucial that these important issues should be debated and discussed in minute detail and that this House should come eventually to a decision on whether the law should be changed and, if it should, how it should be changed.

In this context, the noble and right reverend Lord put his finger on it, because if we go down this road, this will be merely the first stage. When I listened to the noble Lord, Lord MacKenzie, who made a very moving speech, and the noble Baroness, Lady Finlay—two people who have given their lives to medicine, to helping the weak and the vulnerable—I realised that I do not wish us to embark down that road, which will end when it will be entirely permissible for anybody to do virtually anything.

We must recognise that we are embarking on a very difficult adventure if we indeed agree to support the Bill of the noble and learned Lord, Lord Falconer, at the end of the day. I sincerely hope that we will not. We have heard some powerful arguments. The noble Lord, Lord Brennan, made an extremely powerful and moving speech, and I hope that it is one that all noble Lords who are not present today will read, mark, learn and inwardly digest.

It is often said:

“Thou shalt not kill; but need’st not strive

Officiously to keep alive”.

Of course we are not in the business of seeking to increase suffering, but the fact is that the present law allows a degree of latitude without placing our doctors and nurses in the position in which the noble Lord, Lord Empey, does not want his daughter to be placed in a few years’ time.

Why have I come emphatically to the view that this would not be a good law to embrace? I will tell your Lordships in one or two sentences. First, I am powerfully influenced by the fact that the noble Baroness, Lady Campbell of Surbiton, who will speak shortly, is against it. The noble Baroness, Lady Grey-Thompson, is against it. Here we have wonderful examples of what the triumph of the human spirit can achieve. If they say that they do not want to go through that legal door, I am strongly persuaded to support them.

I end with a brief quote. We have all had many letters. I received one this morning from a Roman Catholic parish priest in Lancashire, which read:

“Whilst we should not take extreme measures to prolong life, we certainly should never take deliberate steps to end or shorten life, nor assist in suicide”.

We should not, and I hope and pray that we will not.