Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Cullen of Whitekirk and Lord Beecham

Wednesday 22nd January 2014 Lords Chamber

[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.