Office of Lord Chancellor (Constitution Committee Report)
Lord Cullen of Whitekirk Excerpts(9 years, 4 months ago)
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Lord Cullen of Whitekirk (CB)
My Lords, like the noble Lord, Lord Lexden, I was a member of the committee that produced the report. With regard to the duty of the Lord Chancellor in respect of the rule of law, the committee concluded that that duty extends beyond his or her dealings with the justice system and, in its words in paragraph 50,
“requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government. We recommend that the Ministerial Code and the Cabinet Manual be revised accordingly”.
That conclusion took account of Section 1 of the Constitutional Reform Act 2005. It states that the Act does not adversely affect the existing constitutional principle of the rule of law, or the Lord Chancellor’s existing constitutional role in relation to that principle. That section may be rather unspecific but the committee’s conclusion was built on evidence given by the majority of its witnesses, including robust contributions from the noble and learned Lord, Lord Falconer of Thoroton, and others. The committee also noted that, in commenting on the Bill that led to the 2005 Act, the Constitutional Affairs Committee in the other place considered that in future the Lord Chancellor would continue to be the “constitutional conscience of Government”.
A number of remarks have been made about the quality of the Government’s response in the letter from the then Lord Chancellor on 26 February, and I must add another. With regard to the conclusion to which I have referred, the letter reads as if all that the committee had done was recommend changes to the code and the Cabinet Manual. It said that these documents, and the Lord Chancellor’s oath of office,
“already accurately reflect ministerial responsibilities in relation to the rule of law”.
Whether by design or by misadventure, the letter failed to address the scope of the duty of the Lord Chancellor, whatever may or may not be stated in such documents. It also failed to take account of the basis on which the committee had reached its conclusion and recommendation. In view of the evasion in the Government’s response, I invite the noble Lord, Lord Faulks, to state whether the Government now accept that the Lord Chancellor has a duty in regard to the rule of law that is more than a mere appendage to his or her responsibilities for the Ministry of Justice and extends to the upholding of the rule of law within Cabinet and across government, and if they do not agree, why not.
I will briefly refer to one other matter. In their response, the Government placed particular reliance on what is said in the Ministerial Code and the Cabinet Manual about the role of the law officers. It does not seem in doubt that they are guardians of the rule of law. However, as the committee observed, their role should not be seen as other than complementing or supporting that of the Lord Chancellor. They cannot simply take the place of the Lord Chancellor. For example, Mr Dominic Grieve, the former Attorney-General, stressed that the limited staff in the Attorney-General’s Office would not enable the law officers to be overseers of the rule of law. Moreover, he pointed out that the Attorney-General may not be privy to policy discussions to which rule of law issues might apply. The noble and learned Lord, Lord Mackay of Clashfern, referred in his evidence to the Lord Chancellor’s role as being,
“to ensure that, if there is a legal and constitutional issue on which it is necessary to take the Attorney General’s advice, that is done”.
Thus, the Government’s reliance on the law officers is superficial and short-sighted.
Inquiries Act 2005 (Select Committee Report)
Lord Cullen of Whitekirk Excerpts(9 years, 7 months ago)
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Lord Cullen of Whitekirk (CB)
My Lords, the committee’s report is sound, thorough and constructive. I have an interest in the subject matter of the report in the sense that I have chaired a number of public inquiries, the first being the inquiry into the Piper Alpha disaster, and I gave evidence to the committee.
I welcome the Government’s acceptance of the committee’s recommendation that the Inquiries Act should be amended so that a Minister who wishes to appoint a serving judge should first obtain the consent of, and not merely consult with, the appropriate senior member of the judiciary. I recall that some 10 years ago, during the passage of the Inquiries Bill, the noble and learned Lord, Lord Woolf, and I were the senior judges of our respective jurisdictions at that time and we spoke in favour of such an amendment. However, it was not to be. It was opposed by the then Government and did not become part of the Act.
The committee’s recommendation on this point is supported by a number of important considerations. It is surely a matter for the senior judge in each jurisdiction to decide, for example, whether a judge should be deployed from the available resources, whether a particular judge is in fact suitable for the task and, perhaps most important of all, whether the subject of the inquiry is one for which the involvement of a judge is appropriate. Where the subject is sensitive in political terms, there is a risk of damage to the high regard in which judges are held and, in particular, their reputation for independence and impartiality. A judge who is invited to take an inquiry but has good reasons for declining, despite his sense of public duty, should know that he can have the backing of the senior judge in his jurisdiction. I trust that, whatever the complexion of the next Government, they will support the amendment proposed and recommended by the committee.
I now turn to other matters. I am less than happy with the Government’s treatment of other recommendations by the committee and propose to mention two of them. The first concerns the appointment of counsel to the inquiry—an appointment which is likely to be needed in almost every inquiry under the Act. The role of counsel to the inquiry is of crucial importance: overseeing and preparing evidence; questioning witnesses, if necessary robustly; advising the inquiry; and potentially representing it in the event of its being challenged. In my experience, it is essential for counsel not only to be competent for the job but to have a close working relationship with the chairman, interpreting and fulfilling his aims and enjoying his respect and confidence. This is even more important today when counsel to the inquiry has an increasing influence on the scope of the questioning of witnesses and hence on how the inquiry is perceived. I also agree with what the noble and learned Lord, Lord Woolf, has said about the important assistance which counsel can give to the parties.
The rules define counsel to the inquiry as,
“the qualified lawyer or lawyers, if any, appointed by the chairman to act as counsel”.
The committee considered that it should be put beyond doubt that the Minister had no say in the appointment, so it recommended that solely the chairman should appoint counsel to the inquiry. The Government rejected that recommendation, because,
“Ministers will want to retain control of such issues which affect departmental budgets and the terms of reference of an inquiry”.
What does this exactly entail? Does it mean that, where the chairman and the Minister are not in agreement about an appointment, the Minister should have the right to override the chairman and direct him as to who should be appointed, or at any rate veto the chairman’s choice? Either way, that is a poor foundation for what should be a confident and productive relationship. If the Government are concerned about the cost of leaving the choice of counsel to the chairman, one has to bear in mind that, under Section 17(3) of the Act, the chairman has to act with regard to avoiding any unnecessary cost. It was also one of the committee’s recommendations that the chairman should consult the Treasury Solicitor in order to ensure that counsel is appointed on terms which give good value for money. As for the Government’s reference to the terms of reference of the inquiry, I find their relevance to the choice of counsel obscure and, in any event, unconvincing.
Secondly, I turn to warning letters. One might expect that the chairman of an inquiry should judge what warning should be given, as a matter of fairness, to a person—that includes a body corporate or incorporate—that is liable be criticised in the report of the inquiry. Nevertheless, the Inquiry Rules prescribe what must be done. To put it briefly, rule 13 states that the report must not include any “explicit or significant criticism” of a person without sending that person a warning letter and giving the recipient the opportunity to respond. The rule has to be read along with rule 15 which prescribes the content: it must state the criticism; the facts which substantiate it; and the evidence supporting those facts. Since my inquiries were before the Act came into force, I have not had any direct experience of working under these rules. But I can readily envisage the difficulties, which were clearly illustrated during the course of the evidence given to the committee.
First, the rules take no account of the considerable differences in the nature of various inquiries and the events or conduct with which they may be concerned. It has often been said that every inquiry has to adapt the procedure to meet its own circumstances. No doubt there are some cases in which there is a need for a detailed warning, for example in the case of a person who is faced with very serious allegations, or a person who has not been represented at the inquiry. However, at the other end of the spectrum, the position may be entirely different. Parties who are represented throughout the proceedings will have heard the evidence and the submissions, and will also have taken steps to challenge them. They are already aware of the issues—as it were, they know the score. Yet rules 13 and 15 require the inquiry to issue detailed warning letters, as defined, and to take into account responses which may simply repeat, or seek to embellish, what they have already said during the inquiry proceedings.
Secondly, literal compliance with the rules and the handling of responses can prove so complex, demanding and time-consuming as to add greatly to the time taken by the inquiry to produce the report. It would be a mistake to think that a warning letter would set out what was required in a few pages. I understand that a warning letter and its response can amount to hundreds of pages. No doubt an inquiry team would be anxious to avoid overlooking what could be a “significant” criticism, but where should it draw the line? Sir Robert Francis, whose name has been mentioned already and who chaired the inquiry into the Mid Staffordshire NHS Foundation Trust, gave evidence that in his experience warning letters could cause quite unnecessary alarm and a lot of time was spent on people responding to things that were not in fact on the mind of the chairman. He said that the process of warning letters and responses to them extended his inquiry by at least six months.
I also see from the committee’s report that Sir Brian Leveson explained to it that, in his inquiry into the conduct of the press, the prescription set out in rule 15 led to his adopting a different approach in which he ventilated possible criticism by means of a generic letter. He said that, had he sought to comply in terms with the requirements of rule 15,
“I need never have finished because they were all very specific”.
Even so, his leading counsel Robert Jay, now Sir Robert Jay, spoke of that rule causing,
“huge grief and a huge amount of work and incurring of public expense”.
The committee’s recommendation with regard to these rules has been mentioned in earlier speeches. I am not saying that what the committee recommends is a perfect solution. Others have suggested that it might be practicable to modify the rules to set out what should generally be done, giving the inquiry chairman some discretion, without courting the risk of judicial review.
The Government’s response to the committee’s recommendation was to reject it. Having referred to the structure of rule 13, it merely stated,
“The Treasury Solicitor's Department has advised that the drafting of rule 13 is not defective”.
It said nothing about rule 15. It did not address the committee’s concerns as expressed in its report in the light of the evidence before it. I urge the Minister the noble Lord, Lord Faulks, and his colleagues to think again and to give serious consideration to introducing flexibility and proportionality to the rules so that fairness can be achieved without loss of common sense.
Anti-social Behaviour, Crime and Policing Bill
Lord Cullen of Whitekirk Excerpts(10 years, 9 months ago)
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Lord Brennan (Lab)
My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.
My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was an innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.
Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.
Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.
In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.
Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.
That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.
Lord Cullen of Whitekirk (CB)
My Lords, I shall say something briefly about the reasons put forward by the Government in the past for the amendment to the law which is sought to be effected by Clause 161. In fact, as far as I can see, they have put forward two different explanations for this change in the law. The first is that there is said to be a doubt as to how the category of cases recognised in Adams should be formulated. I mention that in case the point is renewed again today. In his letter to the chairman of the Constitution Committee of this House, dated 11 November 2013, the noble Lord, Lord Taylor of Holbeach, said that there was a doubt created by the later decision of the Divisional Court in the case of Ali in explaining the effect of Adams. However, the formulation adopted by the court in Ali was rightly criticised at the Committee stage of this Bill. In any event, if there were a doubt as to how the category should be formulated, it is odd, if not extravagant, to deal with that doubt by getting rid of the category altogether, which is the effect of this proposed amendment to the law.
The second explanation, to which all the speeches today have been directed, is to do with whether one course or the other should be taken, with the Government preferring the narrow approach. As the noble Lord, Lord McNally, said in Committee:
“We do not believe that it is necessary to pay compensation more broadly than this”.—[Official Report, 12/11/13; col. 704.]
No doubt, Parliament can overrule a decision of the Supreme Court, but the question is whether it is appropriate that it should do so. I entirely agree with the eloquent speeches made today in support of the amendment.
Lord Beecham (Lab)
My Lords, the whole House, and perhaps more importantly, our whole system of justice, is deeply indebted to the leading lawyers who have addressed us today, noble and learned Lords who have served in the highest judicial offices and others who have practised the law in the areas that we are concerned about. We are equally indebted to the one non-lawyer who has spoken in this debate, the noble Lord, Lord Cormack. The humanity and power of the case that he has put has informed the debate in a slightly different way, and one that I very much welcome.
The rationale for the Government’s proposals on compensation for those who have suffered miscarriages of justice is set out in the impact assessment that they published in May 2013 under the elegant rubric of “Other key non-monetised benefits by main affected groups”, which states that the narrower test—that is, that contained in the Bill—
“is likely to result in fewer unmeritorious claims as a result of the greater clarity of the test”.
This assertion rests on two flawed premises. The first relates to the term “unmeritorious claims”, since the effect of the Bill would be to, and is clearly intended to, render claims unmeritorious by virtue of failing the very test that the Bill imposes—that is to say what may now be justiciable ceases to be so because of the new requirement to prove innocence beyond reasonable doubt. Thus we have, in effect, a circular justification.
The second defect lies in the bland assertion that the test supplies greater clarity. But as I, and others more learned than I could claim to be, pointed out in earlier debates on this issue, the law is clear. It was established by the Supreme Court in the Adams case, albeit by a narrow majority, and encapsulated in the judgment of the noble and learned Lord, Lord Phillips, reflected exactly in the wording of this amendment. The Supreme Court is not conducted on the model of Lincoln’s cabinet, in which it may be recalled that a proposition which was opposed by every member save the President passed only on the latter declaring “the Ayes have it”. The decision was a decision of the Supreme Court. The Supreme Court has clarified the law.
The Adams case was followed by the Ali case in the Court of Appeal in which, quoting Adams, Lord Justice Beaston declared that,
“it is therefore now clear that the concept of miscarriage of justice under s 133 (of the Criminal Justice Act 1988) is broader and does not only cover those who show they are demonstrably innocent”.
I add, in parenthesis, as I said in Committee, and as the noble Lords, Lord Wigley and Lord Cormack, said today, that proving a negative will often be impossible. Those words were echoed by the noble Lord, Lord Brennan, whose experience, I respectfully suggest, is particularly relevant to the deliberations of today and to the outcome of this debate. It is true that the Ali case offered a somewhat different form of words, which I found seductive enough to adopt in the amendment I moved in Committee, but, of course, the formulation of the Supreme Court takes precedence. Having, as I said I would, given further consideration to the matter, I am content to support the amendment of the noble Lord, Lord Pannick, which would enshrine in statute the essence of the Adams judgment. I fear that the Government—before the Minister joined them—have sought to perpetrate the parliamentary offence of attempting to obtain legislation by false pretences. I hope that he will not make himself an accessory to the crime.
Anti-social Behaviour, Crime and Policing Bill
Lord Cullen of Whitekirk Excerpts(11 years ago)
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Lord Cullen of Whitekirk (CB)
My Lords, the noble Lord, Lord Beecham, has correctly drawn attention to the ostensible reasons given by the Government for including Clause 151 in the Bill. I noted that at Second Reading the noble Lord, Lord Taylor of Holbeach, referred to the clause as the “new test”, which would be in aid of clarity and “much-needed certainty”. He added,
“we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise”.—[Official Report, 29/10/13; col. 1486.]
I will make three brief comments.
First, it is perfectly clear that Clause 151 is concerned not merely with the interpretation of Section 133, as he seemed to suggest. It would exclude the type of claim which was recognised and allowed in Adams, and what was said at Second Reading simply does not address that particular step. Secondly, it seemed to be suggested that there was a current state of uncertainty in regard to the law. However, it is important to bear in mind that in Adams the Supreme Court carried out an exhaustive study of the scope of Section 133 and made a fresh analysis. Part of that was to get a final resolution of conflicting statements that had been made by judges in previous years.
Thirdly, Section 133 was intended to give effect to Article 14.6 of the covenant, which has already been referred to and which was ratified by this country in 1976. The wording of Section 133 is virtually identical to Article 14.6; apparently that was done deliberately. The Supreme Court had to consider what meaning should be given to Section 133 in the light of that article. Therefore, is it appropriate for Parliament to be invited to use its legislative supremacy to overrule the decision of the Supreme Court as to the application of such a statutory provision, and in particular to cut down its application, including on the ground of expense?
Baroness Kennedy of The Shaws
My Lords, I express my gratitude to those who have already spoken on this very important topic. To some this may seem like rather arcane law, but it is something very simple and very clear that comes down to fundamental principle. When I spoke at Second Reading, I did so with some force, because the reality of cases reminds you why law matters. When you conduct cases where there has been a miscarriage of justice, you know why it is so important that the law acts fairly to those who have suffered the consequence of miscarriage of justice. I, too, feel shocked that the Government—and it might be supported by others—seek to say that this is about saving taxpayers’ money when the sums of money involved are very small and the number of cases are few, and when we are dealing with such an important issue of principle: that is, that we in this country believe, powerfully and rightly, that a person should be presumed to be innocent unless they have been proved guilty.
When the Court of Appeal receives new evidence—and it is rare—and they decide that that new evidence casts a different light on what went before, we make assumptions that the person is therefore is not guilty. To require, as the amended section would, that a person has to prove their innocence is an affront to fundamental principle. It is shocking that our Supreme Court reached a decision with great care and that we are now seeking to overrule that decision. To most of us, the current position is very clear. The notion that there is uncertainty is, I suggest, a confabulation to justify overturning important principle.
Therefore, I, too, wish to invoke the fact that this is about not just an article of the European court or European convention; it is also an affront to the common law built up over the experience of our nation which says that persons should be deemed to be not guilty unless the state has managed to prove their guilt. I have been involved in cases where it would be very difficult to prove that you were innocent—indeed, the cases which have been mentioned, to which I referred at Second Reading, where mothers were found guilty of causing the death of their babies but thereafter it was felt that medical science was not yet in a place to help to ascertain possible genetic causes of sudden infant death. To ask those women who were released on appeal—having been in prison and having suffered the anguish of being accused of killing their own babies—to prove that they were innocent on the standard we are discussing is, of course, asking the impossible.
The reality is that with some cases, usually those involving the use of DNA, you can show that the miscarriage of justice most certainly involved the wrong person being accused. However, that happens rarely and usually involves calling into question the evidence that went before a jury and raising the spectre that a wrong decision was made. Too often, I am afraid, it also involves the state having behaved badly through its agents. In the cases mentioned by the noble Baroness, Lady O’Loan, in which I was involved—Irish cases where there were miscarriages of justice—false confessions had been made following the misbehaviour of police officers. Sometimes a question mark is raised over cases because the state has failed to behave appropriately.
We must be clear that, even on the balance of probabilities, it is asking the impossible for someone to show that they are innocent. Great experience gained in the common law has taught us that we do not make innocence a test; we decide as between guilt or non-guilt. On a previous occasion it was a source of shock to me to hear one of our eminent judges speak about a case where it seemed to him that it would be an affront if someone were compensated. Occasionally people are acquitted where they may be guilty but we in our wisdom know that that is a price you sometimes have to pay for having our highly regarded justice system.
I am afraid that this issue is about principle. It is not about arcane law but about the stuff that makes our legal system work and makes it something to be proud of. I sincerely hope that if the Minister does not accept that this issue has to be looked at again, in the fullness of time this House will remedy what the Government seek to do in this clause.