Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Carlile of Berriew]

Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace for equal work had barely started when I was called to the Bar in 1970. We must, therefore, keep the door open for such issues to be added to legal aid.

The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.

[Lord Elystan-Morgan]

My Lords, I was exhilarated, enthralled and deeply flattered by the reference made by the noble Lord, Lord Thomas, to my existence 50 years ago. It is surprising that he should remember that I was there at all, let alone the hackneyed clichés that I was given to in those days.

I shall speak to this amendment, and to Amendment 23, if I may. Their effect would be to give the lie to the canard, which may well be suspected by many people, that the Government are a liquidator of legal aid. The first part of Schedule 1 is the remnant, remainder and rump of what was once a splendid system created in 1949. I make no apology for reminding the House that in 1949 the financial condition of Britain, having fought and won a dreadful war, at massive expense, was even more parlous than it is today. Yet the Government did exactly that. They sent John Maynard Keynes to the United States to negotiate, on very hard terms, a massive loan that had harsh conditions, the last instalments of which were repaid only some six or seven years ago. That was the situation and it would have been easy for the Government of the day to have said, “Justice is a magnificent thing—it is a noble ideal—but in our weakened condition we simply cannot afford it”. They did not say that, to their eternal credit. The first point to be made is that the amendments give the lie to the idea that the present Government are trying to reduce legal aid and that they are a liquidator of everything that legal aid fundamentally represents. That is neither the attitude nor the intention of the Government.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Tuesday 10th January 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment and want to reinforce my noble friend’s concern over creating a two-tier system in which those with money are able to access expertise and those without have difficulty.

I have reflected on the cases in which I have been involved in the past few years where legal aid has made available expert witnesses, and on the fact that I have within the past decade chaired an inquiry for the Royal College of Pathologists and the Royal College of Paediatrics and Child Health into sudden infant death—that was in the aftermath of miscarriages of justice for women who had been accused of killing their babies. What comes out of my experience is the fact that, even with the curtailment of legal aid in the way that is being envisaged by government, there will be areas where the need for expertise will be clear. The Government are saying that legal aid should be available for family cases where domestic violence might be an issue. One of the ways in which a contested question of domestic violence might arise is by having supportive evidence from professionals who have the expertise to assess whether someone has been subjected to abuse. In most of the domestic violence cases that I have done over the years, a breakthrough has been brought about as a result of the legal world understanding the nature of domestic violence through the assistance lent to the courts by experts. Those experts know, for example, that women often remain in relationships which are abusive and do not seek help because of the psychiatric state of learnt helplessness that they develop, where they cannot envisage being able ever to withdraw from the abusive relationship.

I think of the circumstances in which one has had to use experts to establish age in cases; for example, where an applicant’s claims to be under age may be an issue in the case. Establishing age is taken up by the state or by other authorities and is done through medical examination and expert evidence. Linguistics quite often arises as an issue in cases; for example, in listening to tape-recorded interviews, where one needs the assistance of people with language expertise. We are talking not just about psychiatrists or medical experts but about psychologists.

Let us think of the huge advance that was made within the justice system by our realising that some people confessed because of high levels of suggestibility in particular personalities. Let us think of the ways in which some people process information aurally, while others have real difficulty in doing so and therefore cannot respond well to questions. Those people often give answers that they later correct because they had not understood and were not able to process complicated questions easily. On issues of culture and difference of religion, I have on a number of occasions in recent years used experts to explain to the court matters of practice in certain religions.

I therefore urge the Committee to reflect carefully on curtailment of legal aid where it would be appropriate in cases to have the expertise of properly qualified people lent to the court so that the court can, in turn, do proper justice.

[Lord Elystan-Morgan]

I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.

In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty’s Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.

We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.

The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.

[Lord Clinton-Davis]

The consortium has opined that deleterious effects will follow the Government’s proposals. It says that the standards and availability of experts will disappear or be badly affected. The Committee is entitled to know—I hope the Minister will discharge this in his speech—what meetings have taken place with the consortium. What are the effects? Are the Government closing their mind entirely to the representations that are being made?

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[Lord Phillips of Sudbury]

I am not sure whether I am speaking for these amendments or against them. I started the day at 3 o’clock our time having breakfast in Doha, and was rather choked when eating my toast when I read in the Gulf Times about the King’s research into the financial effects of parts of this Bill. I am sure that my noble friend the Minister will ponder those extremely hard.

I wanted to say a brief word about the important matter raised by the noble Baronesses, Lady Lister and Lady Howarth, and many others, of the prospect of many more of our fellow citizens having to represent themselves before courts and tribunals. I started life as a young lawyer in a country general practice, spending a great deal of my time in magistrates’ courts. My principal was part-time clerk to five country courts. All I can say is that you really do not need a pre-impact assessment of the effect on a would-be proponent or accused, whether before a magistrates’ court or a tribunal. You do not need to do any research to know the effect of having to go into battle without any legal help. That is particularly acute, obviously, with less confident and articulate people, but it is not confined to them. My experience is that you never know how many people are deterred from taking or defending proceedings because they cannot have legal assistance, because of course they just do not tip up; they do not pursue their claim or defend the claim made against them.

I know that my noble friend has thought long and hard about this and has a very difficult task in dealing with parts of the Bill, but the other thing that is easily forgotten is that if someone thinks that they are going to be opposed on the other side by a lawyer, that really is a finisher for the course that they adopt on those proceedings. I make those points merely to try to help the deliberations of the House.

[Lord Elystan-Morgan]

My Lords, I find myself in agreement with practically everything that has been said in this debate. The amendments go to the very heart, core and kernel of the Government’s thinking on this part of the Bill. I would even put the matter higher than most noble Lords have put it. They have put it that there are unintended consequences that now have to be considered. I would put it rather higher than that and say that, in dealing with the sensitive and almost sacrosanct area of the administration of justice and with the question of seeking to save funds at a time when they are desperately needed by the public purse, it is nothing short of reckless to proceed in circumstances where there is no certitude of success in either of those matters.

What is recklessness? Assuming that one takes a fairly lay interpretation, it is a situation in which a risk is created and the person creating that risk either closes his or her mind completely to the risk created or, appreciating that the risk is there, still takes it. That is recklessness. I hope that I do not use intemperate language in this or any discussion in this House. It is right that the Government should ask themselves, in a situation in which the onus of proof is so immense in relation to the area of the administration of justice and saving money for the public purse, whether sufficient consideration was given to as many of the risks as can be quantified—and I appreciate that some of them are very difficult to quantify.

--- Later in debate ---

[Lord McNally]

One has to face up to these things but it is always a case of cuts being made somewhere else. We have tried to restructure legal aid in a way that reflects the economic reality that we face. My right honourable friend the Lord Chancellor has said very frankly that in his opinion we have become a society that reaches too easily for lawyers at taxpayers’ expense, and he is trying to roll back that tendency in this restructuring. We have also said that, as part of the restructuring, we want to look at alternative dispute resolution.

We understand the concerns that have been expressed about the not-for-profit or voluntary sector and the advice sector, and we have responded to them. I am not suggesting that this is a new announcement for the noble Lord, Lord Beecham, but we have found £20 million this year, despite the fact that the legal aid cuts do not impact on CABs at the moment as the cuts have not yet come into being. Under my honourable friend Nick Hurd in another place, we are also having a comprehensive look at the funding of that sector. Therefore, as I said, it is easy to put forward the case that has been made, but I and other Ministers were faced with a difficult decision regarding what we had to spend in the budget and how we could spend it.

Amendment 6 calls for a pre-commencement impact assessment of Part 1 of the Bill and for a copy of the report to be presented to both Houses of Parliament. The proposed review would look at the expected costs and impacts of Part 1 on a number of groups, including children and young people, women, black and ethnic minorities, and people with disabilities. It would also quantify impacts on the courts, tribunals, local authorities and government departments. Amendment 194 would bring the proposed new clause into force on the same day as the Act was passed.

Amendment 195 would require the Lord Chancellor, prior to commencement, to commission an independent review of the expected cost and impact on time and resources for judges and the courts of any increase in the number of litigants in person arising from the provisions in Parts 1 and 2 of the Bill. Amendment 191 would make the date on which the provisions of the Bill came into force subject to the provisions in Amendment 195.

Noble Lords will be aware that an established process, introduced by the previous Government, is already in place for the post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check of new laws after three to five years. As set out in Cabinet Office guidance, these reviews normally take place three to five years after Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee and the Select Committee will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review of the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan.

As noble Lords will be aware, the Government are also, under Section 149 of the Equality Act 2010, subject to an ongoing public sector equality duty to have due regard to the effect of their policies on the groups protected by equality legislation. To that end, we have already produced detailed equality impact assessments—both at the point of consultation and alongside the introduction of the Bill—which set out the likely impact of our proposals on groups sharing protected characteristics. We will of course continue to act in accordance with our public sector equality duty.

In their amendment, noble Lords ask that the cost to other government departments is factored into this review of Part 1 of the Bill. We have given careful consideration to this issue as part of the policy development and clearance process throughout Whitehall. Extensive discussions between policy officials in different departments were held as part of that, and knock-on or downstream costs were factored into those discussions. Ultimately, costs to other government departments will be driven by behavioural responses to the reforms, and these cannot be predicted with any degree of accuracy.

As I have already said, the noble Lord, Lord Bach, referred to our risk assessment. From the very beginning, I have never hidden the facts in answering questions at this Dispatch Box. If you are dealing with cuts in almost any aspect of government—for example, as chairman of housing in a local authority—but especially if you have a budget specifically aimed at the more vulnerable in society, then I do not resile from the fact that the cuts will impact on the most vulnerable in society. However, the test is then how to protect the most vulnerable. One has to ask: “Have we done enough? Have we focused our scant resources enough?”. In part, that is what these debates will be about.

[Lord Elystan-Morgan]

The noble Lord has said very helpfully that downstream costs affecting other departments were factored into the consideration. Therefore, is the £350 million in fact a gross figure from which a factor of X has to be deducted, although at this stage we do not know and are not in a position to know what X might be?

[Lord McNally]

No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer’s riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Tuesday 20th December 2011 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I share with the noble Lord, Lord Phillips of Sudbury, the commendation of the Government for putting in the extraordinarily interesting and, I think, very valuable subsection (3) in Clause 1. It is excellent. The only thing that I do not understand is why the word is “may” and not “must”. One starts by knowing that whatever happens in the latter part of this Bill, we are bound to have a situation where the Government will have less money to put into legal aid. As the noble Lord, Lord Howarth, has pointed out, consequently, more people will have to deal with their own cases.

It is very important that there should be an obligation, rather than just the opportunity, for the Lord Chancellor or the Ministry of Justice to have some imaginative ideas to help people who are going to have to do their own cases. The word “must” should be in the Bill. I am somewhat surprised that the Government, having gone so far with this imaginative idea, did not think that it was necessary to make it compulsory.

[Lord Elystan-Morgan]

My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.

However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.

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

My Lords, it is warming to find a clause in the Bill that has such general approval. Amendment 3 seeks to amend Clause 1(3) to make the power of the Lord Chancellor in relation to the provision of information a duty. This amendment is not appropriate. The duties of the Lord Chancellor under this Bill relate to the provision of legal aid for those who qualify for it in accordance with Part 1. In contract, this subsection is aimed in particular at enabling the Lord Chancellor to direct those ineligible for legal aid to other sources of advice. In the future this may include the provision of referral to paid-for advice through a telephone helpline service. The Government have decided not to implement the proposal at this stage, but intend to run a pilot scheme. The intention is that any individual who is seeking legally aided services but is ineligible for legal aid advice could be signposted to other sources of advice that may be able to assist them in their problem. However, to create a duty in this regard would be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all encompassing service. In a sense, the debate has covered demands for that much broader service, but I still maintain that we cannot make this a bounden duty on the Lord Chancellor. However, it takes us in a direction that is interesting so far as this debate is concerned and, indeed, in the way our legal services are being developed.

Some of the issues raised by the noble Lord, Lord Bach, and my noble friend Lord Phillips go far beyond the responsibilities of the Ministry of Justice and of the Bill about the rights and responsibilities of the citizen in our society. However, I accept that it is sensible to address the need for a better understanding of how the justice system works and allow the citizen a more fully understood access to it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Tuesday 20th December 2011 Lords Chamber

I hope that in his dealings with this Bill, the noble Lord will stand by those principles, which I believe he held earlier and which his party claims to hold to this day. If he cannot accept this amendment today, at the very least I hope that he will go back to his department and to those who are less liberally minded in his office and put his foot down. If he does not, our constitution is in danger, under his watch, of changing very much for the worse as a result of this Bill.

[Lord Elystan-Morgan]

My Lords, 43 years ago, I was a Home Office Minister but I doubt very much whether the procedures that have been so dramatically described by the noble Baroness were current in those days.

I rise to support wholeheartedly this amendment and to salute the courageous and most splendid speech of the noble Lord, Lord Carlile. This amendment goes fundamentally to the heart, core and kernel of what we mean by justice, the rule of law and the fundamental constitutional principles that govern Parliament. If one looks at that splendid book, The Rule of Law, by the late Lord Bingham, which was published last year, the right to justice where a person has a reasonable cause is utterly fundamental. In the immortal words that he used, one of the ingredients of the rule of law itself was that,

“means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve”.

He went on to say that,

“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

No one could put it more splendidly than that. Indeed, it is on that basis that the Constitution Committee has attacked the elements which seek to undermine legal aid. The clear recommendation made by the committee on this clause was that:

“Clause 1 should be amended to read: ‘The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice’”.

I consider those words in the light of the amendment moved by my noble friend Lord Pannick.

On the one hand, one can see that a distinction can be drawn between the two. One is in absolutist terms while the other is in qualified terms. But I do not think that the Committee need worry a great deal about that. The words chosen by my noble friend have already been enshrined in statute in the Access to Justice Act 1999, and all that we are doing is saying that we wish to take the House and the British community back to the mentality which supported the Access to Justice Act. In doing that, I wholeheartedly respect and support this amendment.

The idea that access to justice is a constitutional right has been spelt out in the courts. In 1994, in the matter of R v Secretary of State for the Home Department, ex parte Leech, Lord Justice Steyn ruled in the Court of Appeal that the,

“principle of our law that every citizen has a right of unimpeded access to a court … even in our unwritten constitution …must rank as a constitutional right”.

No one could put it clearer than that. It means, therefore, that any substantial impediment to the reasonable exercise of that right is something that undermines the very concept of our constitution, unwritten though it be. I can well imagine that the Deputy Leader of the House, the noble Lord, Lord McNally, will say, “Well, these are difficult times. Everyone has to react to the crisis and to accept responsibility which is joint and several in respect of all of us”. I can understand that, but I would say in reply to such a submission that, first, no credible and enlightened Government in our day and age can ever stand before the world and say, “We are too poor to be able to afford justice”. Secondly, it is almost certain that the net saving in respect of the £350 million which the Government claim will be slashed from the legal aid bill will either be a very small saving or no saving at all. We will debate these matters in the months to come and there is ample evidence in support of that proposition.

Lastly, let us remember what the situation was in 1949 when the Legal Aid and Advice Act was passed. Britain had emerged from a terrible war bloodied, weakened and practically insolvent. John Maynard Keynes was sent to the United States to negotiate on the best terms possible a loan that it took many decades to repay. The Americans absolutely screwed us and, as we know, it was only a few years ago that that loan was repaid. The Government of the day in 1949 could have said, “We are so impoverished and reduced in our strength that we cannot conceive of such a luxury as legal aid”, but they did not.

[Lord Goldsmith]

My Lords—

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I wish to use the time available to me to speak to Parts 1 and 2 of the Bill, that robustly harrowed area in respect of which we have heard the most distinguished and powerful contributions already.

Unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence. The Government have pleaded three justifications for those proposals. The first is that we live in a society that is overindulgent with eccentric litigants, that legal aid is wasted and, even worse, that in some way or another it encourages and stimulates utterly irresponsible litigation. The second is that, in the context of legal aid, there is every alternative possible that can ameliorate and mitigate any loss that would otherwise exist. Furthermore, they say that, in any event, it is a system that will be greatly improved by the proposals in the legislation.

A few questions should be asked about those propositions. First, is there a litigation culture that menaces the community in which we live? I doubt it very much. I draw all my experience from some 50 years in the law as a solicitor, a barrister and a judge. I have seen many cases of legal aid. There may well be some one would doubt it was utterly reasonable to have granted legal aid—what else would you expect in an imperfect world? But for each one of those, I can think of a dozen cases for which one would think it would have been proper for a litigant to have been granted legal aid.

The first point that I would wish to make in challenge to that proposition of overindulgence and creating a culture of litigation is to be found in the report by the noble Lord, Lord Young, some few months ago, entitled if I remember rightly, A Community and a Safe Society.

[Lord Faulks]

My Lords, it was Common Sense, Common Safety.

[Lord Elystan-Morgan]

I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Young, made it perfectly clear that the conclusion that he came to, from all the evidence that he had heard, was that there was no such thing as a litigation culture in society but there was in the minds of tabloid editors. Of course, there are eccentric litigants. Let us just think of how poor the reports of the law of tort and the law of contract in the 19th century would have been were it not for eccentric litigants. However, they were rich and they were certainly not on legal aid. That is what we have to consider. There is no evidence whatever that we live in a situation where legal aid has stimulated a culture of litigation.

Secondly, we ask whether the effects of what we see now are going to be destructive or benign. So much has been said here today that it needs me only to ask that particular question for it to be answered. It is perfectly clear that the whole foundation, the whole ethos, of legal aid is being challenged and attacked. In those situations, the scope of the cuts and the very nature of the deprivations are such that it is inevitable that there will be very considerable destruction. There will be no legal aid generally, but only in that cluster of sparse areas referred to in Schedule 1. Six hundred thousand people who are now eligible for legal aid will be taken out of that system. There will be no legal aid for private family cases apart from domestic violence—and it seems that the gateway to that has already been deliberately created as a massive obstacle course for likely applicants.

Thirdly, I look to the question of whether amelioration is possible. I doubt it. No doubt mediation has its part to play. Even if we had an army of persons trained, skilled and experienced in mediation—and I hope that some day we might very well come to that; a great deal might be done—some cases, especially family cases, as I well know, could take days but would otherwise be utterly impossible. Again, so much has been said about no-win no-fee to make it obvious that, although that may fill some of the gap, a huge and yawning chasm will still remain.

Lastly, I ask a question about the cost to the Exchequer. In its third report on legal aid, the House of Commons Select Committee on Justice expressed amazement that there was no comprehensive study of the knock-on effects. These knock-on effects will show themselves in one of two ways: either people will retreat from defending or asserting their rights altogether, or there will be a knock-on effect in massive expenditure in other departments.

It has been calculated by the CAB that for every £1 that is spent on legal aid, £2.34 will be spent on housing, £7.18 on employment, and £8.80 on benefits. Where is the gain? What is the gain commensurate with the anguish, the loss and the injustice? At Second Reading of the Bill in the other House, the Secretary of Justice said:

“I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise”.—[Official Report, Commons, 29/6/11; col. 986.]

It is not by their words but by their deeds that they will be judged, as far as this matter is concerned.

Supreme Court: President

Lord Elystan-Morgan Excerpts

Wednesday 16th November 2011 Lords Chamber

[Lord McNally]

I do not think one should take a snapshot of the last two appointments and say that means that there is no diversity. There will be four appointments to the Supreme Court in the next 24 months. Let us wait and see.

[Lord Elystan-Morgan]

Where there are two candidates of absolutely equal merit, is it not the case that the appointing body only has one of two choices: either to toss a coin or to apply the relevant provision of the Equality Act?

[Lord McNally]

I think that is what I indicated in my earlier reply.

Crime: Self-defence Homicide

Lord Elystan-Morgan Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Elystan-Morgan]

Does the Minister accept that the principle of self-defence, whereby a person is entitled to defend himself or any other person from unlawful attack by using no more force than is reasonably necessary, is well ensconced in our law, well understood by juries, and is fair and clear? Furthermore, does he accept that the common law has enshrined this principle for a very long time; that it was spelt out in detail in the case of Palmer 40 years ago, and, indeed, enshrined in Section 76 of the Criminal Justice and Immigration Act 2008; and that any doubts that exist exist more in the minds of tabloid editors than of judges and lawyers?

[Lord McNally]

My Lords, as always, there is a great deal of wisdom in what the noble Lord says—and a great deal of accuracy as well. We intend to provide greater clarity with this new guidance and through the clauses in the Legal Aid, Sentencing and Punishment of Offenders Bill, which will be coming before this House shortly. It is certainly true that, in so doing, we will be bringing into statute what is already a very fixed principle in our common law.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, will the Minister make clear to the viewers and listeners from north of the border that all the answers he has given so far apply only to England, and perhaps also to Wales?

[Lord Elystan-Morgan]

Including Wales.

[Lord Foulkes of Cumnock]

Yes, including Wales, thank you. Will the Minister consider having some discussion with his counterpart in Scotland about lessons learnt from Scots law, which very often—and, I think, in this case—is superior to English and Welsh law?

Loan Companies: Interest Rates

Lord Elystan-Morgan Excerpts

Thursday 3rd November 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, would the Minister accept that in many credit contracts, judges in a civil capacity have a considerable jurisdiction to strike out and amend their unconscionable terms? Will she see to it that the greatest publicity is given to this power which has long been vested in civil judges?

[Baroness Wilcox]

The answer is yes.

Public Bodies Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, the noble Lord, Lord Roberts of Conwy, has, in a most endearing way, explained to the House how by the purest coincidence it so happened that many months into this Bill he had an idea in relation to Clause 3, which had not commended itself in any way to Her Majesty’s Government, but which somehow or another now has been thoroughly and enthusiastically espoused by them. I will say no more about that matter.

However, I think that the submission is one which the House would accept. Clause 3(2) has nine paragraphs attached to it. The totality of the provisions would give a Minister massive, almost dictatorial, powers in relation to the reconstitution of any one of the bodies included in the Bill. If a Minister wishes to do so—I am sure that the noble Lord, Lord Taylor of Holbeach, would not wish to do so—he could exercise utterly emasculated consequences upon S4C. However, if he does not wish to do so, is there any reason why the very limited powers—indeed, in one or two cases they are almost cosmetic powers—referred to in the amendment of my noble friend Lord Wigley should not be accepted? It seems to me that there is an irrefutable logic in relation to that.

I shall speak briefly about the other matters. We have rehearsed these arguments time and again but I have the impression that it is very much the exercise of the rocking horse. There is a great deal of movement but not much forward progress. I speak now as a Welsh-speaking Welshman and as one who can well represent the views of the ordinary persons in Wales who regard the Welsh language as their own language, even though four-fifths of them do not speak it. The problem is that there is a huge chasmic gap between what Her Majesty’s Government say and desire—I accept the total genuineness of the noble Lord, Lord Taylor, and his team in this matter—and what is legally possible.

Three areas of independence are crucial: financial independence, corporate independence and editorial independence. In a letter dated 25 March, which was sent to many of us, there is a guarantee with regard to editorial distinctiveness. It seems to me that there is a world of difference between distinctiveness and independence, a matter into which the noble Lord might wish to look. To me, distinctiveness is much narrower than independence.

As regards financial independence, it would be marvellous if there could be a direct transfer of a part of the fee. The Government would get a quid pro quo—or, one might say, an £80 million quid pro quo. There is a huge restraint on them in the way in which that fee can be spent. If that fee passes through the conduit of the BBC, of course the BBC becomes the accounting agent. But there is a way out. The noble Lord, Lord Roberts of Conwy, said that there was not. In June 2006, an agreement between the BBC and the Secretary of State was published and it has formal status. Following that, a few months later, in October 2006, the charter of the BBC was completed. It seemed therefore that there was every intention that the preceding agreement of June 2006 should in some way operate upon the charter. That agreement of June 2006 makes it clear that the Minister, in relation to the licence fee, is entitled to withhold such sum or sums as he sees fit. In other words, they would never go to the BBC at all. I should be most grateful if full thought could be given to that.

The noble and learned Lord, Lord Morris of Aberavon, raised the corporate independence of S4C in this structure. If you have an informal relationship, all is well. There is already an informal relationship. The BBC is responsible for producing 10 hours per week of programmes in the Welsh language, which is no problem at all. But once a structure is set up, one corporation has to dominate over the other corporate bodies. There cannot be a situation whereby they are at arm’s length and equal. That point has already been made by my noble friend Lord Wigley.

That is the situation. Well meaning guarantees are being given by the Government, but they are in no way bankable because of the technical, legal difficulties. The problem can be overcome only by tackling those difficulties in a specific way so that the undertaking given is realistic and bankable.

Prisons and Young Offender Institutions: Education and Training

Lord Elystan-Morgan Excerpts

Monday 28th February 2011 Lords Chamber

[Lord McNally]

Across the Prison Service we are trying to identify opportunities for people to be trained. As the noble Baroness says, for somebody who lacks literacy—although I hope we address that in our programmes—gardening and similar park activity may quite often provide rewarding and worthwhile employment.

[Lord Elystan-Morgan]

My Lords, does the Minister recollect that the prison rules still express the reformation of the prisoner as the main purpose of incarceration, and that adequate educational and training services are central to that very concept?

[Lord McNally]

Again, I could not agree more. Of course punishment is an aspect of prison, as is protection of the public from dangerous prisoners. However, as I mentioned, with issues such as homelessness, dysfunctional families, lack of education and lack of a job when leaving prison, if you can intervene while people are in prison and prepare them for life outside with a proper policy on the rehabilitation of offenders, then you break into the cycle of crime, lower the numbers in prison and make it a win-win situation for the public and the taxpayer.